Military Justice Outline 2012 (Schenk)
Military Terms
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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
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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
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Administrative Corrective Measures
o RCM 306(c)(2)-Letters of admonishment, reprimand, counseling, disapproval,
exhortations. Normally for neglect, laziness, immaturity, discipline, uniform issues.
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Military Justice Outline 2012 (Schenk)
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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
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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)
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Military Justice Outline 2012 (Schenk)
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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
US v.
Quintanilla
US v. Baker
US v. Cain
US v.
Rittenhouse
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?
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
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
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.
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
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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
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Military Justice Outline 2012 (Schenk)
o
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o
o
o
o
Reid v. Covert
Solorio v. US
US v. Scheider
NOAA, Public Health Service, and others while serving with the armed forces
POWs in custody
In declared war-persons serving with the armed services
Persons employed by and serving with armed forces OCONUS (depending on SOFA
constraints)
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
Those under Art.4 of the Geneva conventions and violate the laws of war
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/military
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.
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
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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
US v. Baldwin
Trial Court
Appellate Court
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 bias
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
Dismiss w/ or w/o leave to re-file; can give clemency through the convening authority
Dubay post-trial hearing regarding the influence and its effects; dismiss the sentence
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Military Justice Outline 2012 (Schenk)
and order a rehearing. Dismiss the findings and sentence and move to another
convening authority. Entirely dismiss the case.
Pretrial Issues
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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
US v. Loukas
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.
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
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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
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Military Justice Outline 2012 (Schenk)
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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
US v. Cruz
(Peyote
platoon)
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Comparing and Contrasting Searches and Inspections
o Katz test for a search under the 4th Amend.: Reasonable expectation of privacy. 1) Did
the subject of the search expect privacy and 2) would the public expect the area
searched to be private and not subject to police search?
o With probable cause, a reasonable belief that items connected with criminal activity
are there at the time you will be searching (US v. Figuero) (search warrants can go
stale):
 Judges issue authorizations
 CCs can issue authorizations over areas they control (squadron
buildings/hangers/planes/buses)
o Terry stop-allowed if the person is reasonably believed to be armed
o Other searches allowed without probable cause regarding evidence/weapons:
 Searches incident to apprehension: wingspan of the person, the passenger
compartment of a car if apprehended in close proximity to exiting the car,
cursory sweep over a room/house if the person is believed to be armed or
suspected of a violent crime, voluntarily consenting to the search
US v. Weston
US v. Larson
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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)
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.
Δ spying via hidden camera on a female Sgt. Wife and husband took to Provost
Marshall’s office and separately questioned. Wife gave permission to search the
house. If both had been present together and one refused and the other consents
there can be no search (Robinson). When both occupants are not present then only
the one present need consent (Matlock).
Carnal knowledge of a minor. On a government computer with child porn and chat
logs regarding porn. Office was readily accessible and every time you log on you have
to acknowledge the disclosure/monitoring banner. No reasonable expectation of
privacy based on the Katz test.
Military Inspections
o No probable cause, authorization or warrant required if w/in confines of an inspection
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Military Justice Outline 2012 (Schenk)
o
o
o
o
US v. Campbell
US v. Bickel
Primary purpose cannot be to obtain evidence for law enforcement
Must be regulatory in nature, ensuring unit and members are fit for duty, random
inspections, scheduled inspections
Δ can claim that this was targeted against them and accuse subterfuge, burden shifts to
the gov’t to prove by clear and convincing evidence this was still an inspection
Cannot be done because:
 Inspection to locate weapons or contraband, done:
 1) Immediately following a specific offense in the unit
 2) Specific individuals are chosen
 3) Substantially different intrusions for different person
First Sergeant hears rumors of drug use in HQ and 1st platoon. Investigates and
chooses drug testing for the members of the HQ and 1st platoon based on their
associations between both platoons and those associating with known drug uses.
Because there was 1) no independent (judicial) determination of probable cause; 2)
coming on suspicions/reports of drug use within the platoons
4th Amend. prohibits the selection of particular individuals; use policy and guidelines
on non-discriminatory basis.
Pretrial Procedure Requirements
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Immunity: Testimonial, Transaction, De Facto
o Transactional-immunity from court martial entirely
o Testimonial-statements given in and for trial will not be used versus person; can still
prosecute for offense with other evidence or for perjury if the statements given are
false
 Preponderance of the evidence that the prosecution wasn’t based off of or
started because of the immune testimony
 Screen immunized info from trial
 Prosecutor of the immunized person should have no access to the
immunized testimony
o General immunity may be granted by the GCM convening authority, but DoJ controls
the federal prosecution
o De Facto immunity may be granted by investigators or prosecutors during questioning if
their conduct displays a false power to grant and would grant immunity
US v. Olivero
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Marijuana and perjury trial. One wife told JAG that Δ was smoking marijuana and
another wife gave a sworn statement of the marijuana. Δ gave immunized testimony
about his marijuana use, and the prosecution must prove that the immunized
testimony wasn’t use and it was only the wives’ testimony that led to the prosecution
Preferral and the forwarding of charges
o Anyone subject to the code signs the charge sheet and prefers the charges to a
commander
 Company commander decides not to use NJP, and prefers charges to the next
CC
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Military Justice Outline 2012 (Schenk)
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US v. Nix
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Handling of classified material. IO and trial counsel had ex parte communications. An
advisory JAG had been appointed for the IO, but chose the trial counsel instead. The
trial counsel cannot also be the IO’s, who is a lay-person, counsel and prosecute.
Staff Judge Advocate’s Advice to the Convening Authority
o RCM 406: requirements of pretrial advice from the SJA. Required on any case where
punishment could be in excess of six months. Advice required:
 1) determination whether each specification alleges an offense
 2) conclusion regarding whether each alleged offense is warranted by the
evidence
 3) determination whether a court martial would have jurisdiction
 4) appropriate level of jurisdiction
US v. Plumb
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Sodomy, socializing with students, marijuana, maltreatment. Convening Authority was
a Captain (Navy), who’s wife the Δ had flirted with and then had a no-contact order
issued against the Δ. Once bias is raised, the gov’t must show that there wasn’t a bias
or else the bias remains and measures must be taken
Article 32 and the Pretrial Investigation
o Required before a GCM is referred, and only the Δ can waive it
o Investigative officer is appointed: hears evidence, witnesses and makes
recommendation to the GCM Convening Authority
o Recommendation includes: witness summaries/reasonable grounds if the Δ isn’t
mentally responsible/competency to stand trial and participate in own
defense/properness of the charges/recommended disposition of the charges
US v. Payne
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Convening authority convenes, dismisses, or forwards the charges and therefore
must be unbiased
The accuser (signs the charges) can convene the CM but must remain unbiased,
but cannot be the judge or the Art. 32 investigating officer
Fraternization, adultery, conduct unbecoming. Found guilty of fraternization and
adultery. Major F was the pretrial advice and the post-trial review for the convening
authority. Can be both the pre and post trial advice and review officer unless:
actions/advice show bias against the Δ
Referral of Case to Court Martial
o As long as there is no proof/insinuation of bias the court martial process is fair for the Δ
o Convening Authority-refers charges to court martial, selects the panel members, details
the military judge to hear the case, details the prosecutor and defense counsel, is the
one who hears clemency
 Convening Authority is in the best position to manage the resources, maintain
good order and discipline of the force
o Safeguards beyond the Convening Authority-automatic review by the service appellate
courts, guaranteed counsel, preemptory and bias challenges on panel members
Pretrial Decisions
o Pleas can be guilty/not guilty or a mix plea of guilty and not guilty
o Enlisted may choose to have a 1/3 enlisted panel
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Military Justice Outline 2012 (Schenk)
o
o
US v. Bartlett
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Premeditated murder with a pretrial agreement. Panel gave him 25 years, but the
Army restricted medical, veterinarians, inspectors general, chaplains from panel
members. Congress detailed limitations in Art. 25 and who was able to serve on a
panel, services cannot further restrict.
Pretrial Agreements & Guilty Pleas
o Δ must understand to each part and admit the counts that he is pleading to. All parties
must agree to the pretrial agreement in order to be accepted
US v. Dunbar
o
US v. Care
US v. England
(Abu Graib
Pyramid)
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If you plead guilty you cannot change to a different reason mid-trial because of a new
excuse
Panel of members or a single judge may try the case
 Services cannot further restrict panel members beyond Art. 25
 Convening authority chooses the best to serve on the panel
 Must be higher in rank based on the dates of rank if at all possible
 No enlisted on an officer’s panel
 Minimum of five panel members for a GCM
 Minimum of twelve panel members for a GCM with death penalty
Pretrial agreement was too ambiguous because it listed multiple punishments with
different separation possibilities. Must have a clear sentencing maximum and
possible discharges set out or the judge cannot accept the sentence. Judge cannot
know the maximum agreed to punishment-the sentence becomes either the plea
maximum or the judge’s sentence, whichever is lower.
Providence Inquire for Guilty Pleas (Care hearing)
Guilty of desertion. A providence inquiry must be performed by the judge, not the
defense attorney saying he explained the plea. Whether it is an acceptable inquiry is
determined by a totality of the circumstances inquiry.
1) A plea is interlocutory only, it can be rejected
2) Defense counsel must be available for consultation
3) Law officer, judge, must explain:
a. Every act or element of omission for each charge
b. Max sentence
c. Assured of Δ understanding or no plea
Plead to conspiracy to commit maltreatment, four counts of maltreatment, and
indecent acts. Plea to conspiracy was rejected because of alleged co-conspirator
testimony that detailed no conspiracy between the two to maltreat detainees. The
direct contradictions between Δ and conspirator had to be inquired into and plea
rejected. Also because the plea agreement was busted, and went to trial, judge wasn’t
bound to the plea agreement’s sentencing maximums.
Pretrial Motions and Interlocutory Appeals
o Before a plea is accepted, must raise, RCM 905(b):
 Defense or objections on defects in the Preferral forwarding, investigation, or
referral of charges
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o
 Defects in the charges or specifications
 Motions to suppress evidence
 Discovery of witnesses or evidence
 Severance of charges or the defendants
 Objection to counsel
Motion for Speedy Trial may be made at any time
 Assessment of due diligence begins anytime after pretrial confinement
 Art. 10—reasonable diligence
 RCM 707—120 day maximum for the prosecution. Counting from the Preferral
or pretrial confinement to the arraignment.
Article 10
Reasonable diligence standard: length of delay,
reasons for delay, did Δ demand a speedy trial,
was the Δ prejudiced by a lack of speedy trial
US v. Mizgala
US v. Tippit
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RCM 707
Try Δ within 120 days
117 days in confinement and moved for a speedy trial. The right to a speedy trial is
fundamental in order to prevent Δ from languishing in jail. Brought up a right to a
speedy trial prior to guilty plea and then brought it back up on appeal. If a Δ brings up
speedy trial before his guilty plea, then he can bring it back up again. If Δ does not
bring up speedy trial, pleads guilty & waives all appeals, then he cannot bring
speedy trial back up on appeal. Preserve the issue.
Raise speedy trial in order not to waive it with a guilty plea.
Motion for Sanity Board-Δ requests the board in order to determine sanity to stand trial versus
mental competency at the time of crime is an automatic sanity board; full report to the defense
counsel but only a mini report to the trial counsel
o Sanity Board determines:
 At the time of the crime, did he have a serve mental disease or defect
 Clinical psychiatric diagnosis
 Unable because of the disease or defect to appreciate the nature and quality of
his actions
 Is he presently suffering and can he assist in his own defense
o Sane at trial
 If not then mentally separated from the military, suspend proceedings for
treatment, or withdrawal or dismiss charges
o Sane at the time of the crime
 Affirmative defense, burden shows by clear and convincing evidence and then
the prosecution must show he was sane at the time of the crime. Panel will first
find on mental status then find on guilt.
 Partial mental responsibility, RCM 916(k)(2), remove the Δ’s mens rea/intent to
commit the crime
o Sane at sentencing
o Sane during the appeal process
o Sane at the execution of the death penalty
Motion in Limine
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Military Justice Outline 2012 (Schenk)
o
US v. Spata
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Cocaine use and requested any discussion of an earlier altercation with a woman at a
bar be barred from admission. Defense was that the woman spiked his drink with
cocaine. The altercation became probative when the defendant stated that the
woman threw a drink at him, which was supposed to be the spiked drink. Δ made the
prior behavior probative and therefore admissible.
Government Interlocutory Appeals-can only appeal case determining/criminal decisions
o Order which terminates proceedings
o Order excluding evidence material to the trial
o Order directing classified disclosure
o Order for sanctions of non-disclosure
o Order denying protective order regarding classified material
o Refusal to enforce an order sanctioning disclosure of classified material
All interlocutory appeals must be filed within 72 hours of the decision, and take precedent at the
appellate court. Ensure swift trial movement
US v. Daly
US v.
Rittenhouse
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Pretrial request to prevent admission, if rejected, can still object during the trial to the
evidence ‘s admission
If the gov’t doesn’t file timely, within 72 hours of the decision, then the appellate
court will not hear the appeal.
Suppressed the statement plus doesn’t allow the admission of the evidence seized in
the barracks using inevitable discovery. Essentially ends the prosecution, because
there is no more evidence, therefore an interlocutory appeal is necessary.
Extraordinary Writs-i.e., habeas corpus, prohibition, corum nobis-correct fundamental errors in
the trial process
o The All Writs Act, 28 USC § 1651(a)-any court with jurisdiction may establish and hear
writs that are necessary and appropriate in the aid of justice. Requires:
 Within the jurisdiction of the court to hear it (actual, potential, ancillary,
supervisory)
 Extraordinary-can this wait until the actual appeal process
 What is the relief the court can dispense
 Must show by clear and indisputable evidence that there is a need for an
extraordinary writ
US v. Denedo
McKinny v.
Jarvis
Made a plea for a special court martial, but appealed that the sentence was unduly
harsh (but it was w/in the plea’s specifications), also ICE moved to deport, stated he
told his lawyer to ensure he would not be deported; avoiding deportation was his
primary concern in making a plea agreement. Filed corum nobis in the Navy Court of
Appeals-the proper court of appeals for a writ (1st level appellate court).
E-9 accused of sexual based crimes. Colonel P was the accuser (who swore to the
charges) then preferred the charges to Colonel J after appointing an Art 32 IO. Filed a
writ of prohibition because he said Col P was biased as the accuser. As long as there is
no proof/insinuation/perceived bias (proof of other than official interest) the
accuser may prefer charges to another, appoint the Art. 32 IO, or convene a
summary CM. They may not convene a SPCM or GCM.
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Military Crimes in General
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Overview of the Punitive Articles
o Articles 77-143
 Principle Article 77
 Inchoate Article 80
 Conspiracy 81
 Solicitation 81
The General Article 134 and The Federal Assimilative Crimes Act
o A) Disorders and neglects prejudicial to good order and discipline
o B) Conduct of a nature to bring discredit upon the armed forces
US v. Fosler
US v. Simmons
o
US v. Robbins

Charged with Art. 134, committed adultery, but there was no terminal article stating
what the adultery did-prejudicial to good order and discipline/bring discredit upon the
armed forces. Without the terminal element then you don’t know which charge you
are defending therefore violates Amend. V, due process and Amend VI because you
cannot defend against a specific charge without knowing it.
Appeared in gay porn in various parts of his uniform and charged with Art. 134; he
pled to Art. 134 without the terminal element. Should have a terminal article, but
since he pled guilty, this is a waived appellate issue.
C) Federal Assimilative Crimes Act, 18 USC § 13—cannot include charges that are in the
other Articles already, only for non-enumerated charges. Adopts the criminal law of the
state in which the base is located
Beat his wife, who was pregnant and the baby was killed. Charged under an Ohio
statute of fetal homicide because there was, at the time, no UCMJ article on unborn
infanticide. Charged with Art. 134(c) in order to assimilate Ohio statute in military law.
Article 134(c), is broad enough to include state laws, such as unborn infanticide.
Military Offenses
o Failing to obey a Lawful General Order-Art. 92; lack of knowledge of the order is not a
defense because this is a strict liability crime
 (1) Violation Failure to obey a general order
 1) Was a lawful general order
 2) Duty to obey
 3) Violated the order’
US v. Leverette
US v. Green
Came through base with a gun; general order said all buns have to be registered with
military police. Bought drugs, refused to pay, dealer went to cops said Δ pulled a gun
on him. Charged with Art 92(1). Do not have to have notice of the general order to
be guilty of it.
Drug abuse, paraphernalia, possession. Violation of Art. 92. DoD directive 1010.4 is
not punitive; it is merely directive about drug abuse. General orders must give a
punishment and not general guidance to the Services, otherwise it is a violation of
due process to not know what you would convicted of

(2) Failure to obey another order
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Military Justice Outline 2012 (Schenk)



US v. Warren
1) Member of the armed forces issues a lawful order
2) Duty to obey
3) Violated the order
Failed to get out of bed and get into the field with his unit. Lt told him to “take it easy”
and “calm down” when the Sgt was trying to get the Δ out of bed. For a violation of
92(2) you must have a clear order from an armed forces’ member.


(3) Dereliction of Duty & Maltreatment of Subordinates
 1) Accused had certain duties
 2) knew/reasonably should have known
 3)willfully, through neglect/culpable inefficiency, derelict (does not
include ineptitude)
Article 93-Cruelty and Maltreatment-cruelty toward/maltreatment of anyone subject to his
orders
US v. Harman

Maltreatment for failing to protect detainees on nine different occasions. Evidence
was legally sufficient for the guilty.
Status Crimes- Epithets or denunciatory language, truth is not a defense, disrespect by acts (not
saluting, marked disdain, indifference, insolence). Always required to have the authority to issue
the order and is not covered under another crime. Presence required in Art. 91 only. Total
private actions should not be used prosecute
o Article 89-disrespect to a superior commissioned officer (officer need not be present to
be guilty).
o Article 90-1) strike a superior officer or 2) willfully disobeys a superior officer
US v. Traxler
Missing movement of an aircraft because he didn’t want to go to the Persian Gulf
War. Captain went to him and was given a separate order to get on the airplane
Charged with both missing a movement and willfully disobeying a superior officer.
These were two different charges and though based on the same event, they can be
both charged and found guilty, but sentencing might be multiplicious. Art. 90 requires
a clear and distinctly separate order.
o

Article 91-1) strike a warrant officer/NCO, or 2) willfully disobey a warrant officer/NCO,
or 3) treats a warrant officer/NCO with contempt. NCO must be there in execution of
duties of office.
Absence & Duty Related Offenses
o Article 85, Desertion (1) Commissioned officer or enlisted
 (a) Remains absent with intent to be away
 (b) quits to avoid hazardous duty or shirk
 (c) accept an appointment in another service without separation from
the other or enters any foreign service
US v. Mackey
Charged with desertion after leaving before being moved to the Vietnam War. Was
absent for twenty-six months, at his home of record, before apprehension. Argued
that he wasn’t remaining permanently absent, and the military knew where he was,
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Military Justice Outline 2012 (Schenk)
therefore he cannot be charged with being permanently away. Must show that he
intended not to remain permanently away from the Army.

 (2) Commissioned officer, after resignation, but before acceptance, leaves
Article 86, Absence with Leave (AWOL)
o (1) failure to go to appointed place of duty (requires knowledge of the duty to go)
o (2) going from appointed place of duty (requires knowledge of the duty to be there)
o (3) absenting oneself from required place of duty (no knowledge of duty to be there)
US v. Rogers


Article 87, Missing Movement-1) Required to move with ship, plane, or unit; 2) knew of the
movement; 3) missed movement
o By neglect-failure to exercise reasonable care
o By design-intentionally missed
Article 88, Contempt Toward Officials-1) Commissioned officer, 2) contemptuous words against
POTUS, VPOTUS, Congress, SecDef, Service secretary, SecDHS, Governor, State Legislature of any
state, commonwealth or possession, 3) on duty or in present in
o First Amend. defense via New York Times v. Sullivan, not allowed
o Truth not a defense
o Opinions, in private, should not be charged
Sanford v.
Callan
US v. Howe

Stopped going to his work and then went into the barracks, saw members of unit, but
never affirmatively turned himself in. Must take affirmative action to terminate
AWOL. 1) Present with intent; 2) presentment to military authority (a commissioned
officer, noncommissioned officer, or military police); 3)identify himself and disclose
AWOL status; 4) submit to the control of the authority
Stated POTUS was just a dirty politician that protects Jews. Denounced capitalism and
Pres. Roosevelt. Take an oath to the President as an officer. Every officer takes an
oath to the President, and ignorance is not a defense
Contemptuous speech against Pres Johnson and Vietnam War. Attempted to argue
this is a First Amendment protection. Brought in from the British Armed Forces and
then Congress ratified them as well. Article 88 is there to help maintain discipline
within the force, and First Amend. is not a defense.
Art 133, Conduct Unbecoming of an Officer and Gentleman-1)commissioned
officer/cadet/midshipman, 2) disgracing, compromising or dishonoring the officer’s character
o Either unofficial or unofficial conduct
o Can include: cheating, reading another’s mail, insulting or defamatory language,
prostitutes, drunk and disorderly, unofficial or private capacity, crime involving moral
turpitude. Also likely dismissal from the service is likely.
Parker v. Levy
US v. Conliff
Medical dermatologist who was training US Spec. Ops for Vietnam duty. Regularly bad
mouthed war and soldiers. Ordered to stop and be more focused and a better
instructor. Conduct unbecoming Art. 133 and Art. 134 as prejudicial to good order and
discipline
Recorded sexual activity of others at West Point. Charged with Arts.130housebreaking, 133-conduct unbecoming, 134-general article of dishonoring the
service. Statements were disloyal, contempt and disrespectful of the Army
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Military Justice Outline 2012 (Schenk)

Article 134, the General Article for Adultery
o (1) Wrongfully had sex
o (2) One of the persons was married
o (3) Circumstances either—a) prejudicial to good order and discipline (divisive to the
unit/discipline/moral/character); b) discredit upon the armed forces
US v. Marcum
Stated the new test for what is allowable under consensual sexual acts between
adults. 1) Activity within liberty interest identified in Lawrence? 2) Does it
encompass behaviors or factors identified outside of Lawrence? 3) Any other factors
which would be unique to the military?
Fails this test then strict scrutiny as a fundamental liberty interest requiring
a compelling government interest and the least restrictive method
GCM and guilty of adultery, false official statement, assault and battery, obstructing
justice and three counts of adultery under Art. 134 with terminal charge of bringing
discredit upon the armed forces. Argued that adultery is no longer a valid charge
under Lawrence v. Texas. In this case one of the victims was a civilian the other a
minor dependant, and the daughter of another Marine, which would bring discredit to
the Corps and problems within the unit
US v. Orellana

Article 125, Sodomy-unnatural carnal copulation with the same sex/different sex/animal
o Only slight penetration necessary
o Anal, mouth, or animal
o Require specific inquiry to apply Lawrence principles
o Regulates relationships with subordinates and other military relationships as well as
with minors and members of the public.
US v. Stirewalt
Sodomy of female Coastguard shipmates. 1) Within Lawrence’s liberty interest. 2) No
outside Lawrence behavior (children/public location). 3) Military specific factors? Yes,
because the Coast Guard manual provides that shipmates, regardless of rank, should
not have personal relationships, because it is a different situation than civilian or
other situations.
Military Defenses

There are both civilian and military only defenses
General Intent
No mens rea
The crime is merely doing the act-the actus reus
o
o
o
o
o
Specific Intent
Intent or purpose to do some future act, or
achieve a specific consequence
Knowingly, purposefully, or intending to
Affirmative defenses: have own elements to prove and once raised gov’t must disprove
Partial defenses: negate the mens rea element; no prosecution burden
Procedural defenses: usually prevent trial and is not on the merits
Other defenses: deny acc used committed it at all
Mental Responsibility, separate stages to consider15
Military Justice Outline 2012 (Schenk)

The mental psychology board must contain at least one clinical psychologist
(M.D.)
At the time of offense
Clear and convincing
evidence by the Δ
At the time of the trial
Preponderance of the
evidence, must be
rebutted by the Π
At the time of the
sentencing
At the time of the appeal Preponderance of the
evidence, must be
rebutted by the Π
US v. Estes
US v. Axelson
o
US v. Calley
As a result of a severe
mental disease or defect
was unable to appreciate
the nature and quality or
the wrongfulness of the
acts
Unable to understand the
nature of the proceedings
against him or to cooperate
intelligently in his defense
Decided by the panel
Decided by the judge
Decided by the judge
Unable to conduct or
cooperate intelligently in
appellate proceedings
Decided by the judge
Charged with AWOL, cocaine, ecstasy. Argued that the guilty plea was not good
because mental disease or defect at crime, trial, and at the time of the appeal.
Diagnosed with hyper religiosity and poly-substance dependence. At the time of the
crime this is not enough to prevent the appreciation of the nature and quality or the
wrongfulness of his actions
Attempted premeditated murder and disobedience. Claimed he had general anxiety
disorder, OCD and automatism (could not control his movements, which would
destroy the voluntariness of the actus reus). Did not attempt to make a plea of mental
disability. You can only try and remove the mens rea, there is no partially mentally
disabled, and only recognized defenses can be given in jury instructions
Superior Orders-pursuant to orders unless the Δ knew them to be unlawful or a
reasonable person would have known the order to be unlawful
May Lai village massacre during Vietnam. Subordinates refused to kill in some cases
but all stated that Lt. Calley ordered the deaths. Lt Calley said he was given orders to
kill the civilians and used that as a defense. Ordinary man is the standard and this
order of killing all civilians including children would not be considered lawful.
o
o
US v. Clemons
Duress (there is no necessity defense in the military)-commits because another innocent
person would be immediately killed or would suffer serious bodily injury. The threat
must have been there throughout the commission of the crime and just avoiding
hazardous duty is not enough, because that would be shirking.
Good Soldier Defense-the Δ’s good military character makes it unlikely that they would
have committed the crime. Must show the nexus between the crime and the Δ’s
character, and this opens up the Π to rebut the defense.
Convicted of stealing out of the barracks. Argued that his character and good military
record should be allowed to be brought in, and reversed when the judge refused to
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Military Justice Outline 2012 (Schenk)
admit the good soldier defense.
Conduct unbecoming an officer for drug related crimes. The crime itself speaks to the
person’s character-conduct unbecoming and therefore there is a nexus between the
Δ’s character and the crime that should be permitted to be presented.
US v. Belz
Military Judge and Panel Instructions and Findings

Panel given instructions straight from the bench book and any agreed to changes from the
defense and prosecution
US v. Upham

Coastguard Lt JG was convicted of battery, after being tried for aggravated assault, in
addition to being guilty of conduct unbecoming. Had sex, after being HIV positive,
without wearing a condom and informing his partner. Lesser included offenses may
be included at trial or on appeal when elements are not proven of the great offense,
but of the lesser included offense. If a finding is in error, then it is overturned unless
it is harmless error. Harmless error: 1) element uncontested, 2) element supported
by overwhelming evidence.
Findings with Exceptions and Substitutions-panel members cross items out and put in different
words when it is a non-material issue: date, time, sometimes names (like a name change, or
further description of an unknown person)
o i.e. US v. Hopf-changing “Korean male” to “unknown Korean male”
US v. Marshall
o
US v. Roderick
Private found guilty of escaping from Captain K., but in actuality escaped from Sgt
Fleming. Judge found him guilty by exceptions and substitutions, crossing out Capt. K
and placing Sgt. Fleming in his place. This is a change in the nature of the offense,
because the Δ must be able to defend against the charges against him.
Military Judge’s special findings-must lay out the details of what of the charges the
judge finds to be true and how the Δ was found guilty. This may assist the Δ in an appeal
SSgt convicted of possessing/receiving child porn. The judge found only three of the
hundreds of photos to be pornographic in nature (requires several specifications of
what is sexually explicit of a child). The appeal centered around the three photos not
being sexually explicit.
Military Sentencing

Prosecution factors
o Service Data
o Personal Data & character of service
o Prior Convictions
o Aggravating factors
o Potential for Rehabilitation
o Cannot argue for a higher power, such as a God, or for a commander’s desire for strict
punishment
o May invoke sentencing philosophies: rehabilitation, general or specific deterrence,
social retribution, good order and discipline of the force
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Military Justice Outline 2012 (Schenk)
US v. Varacalle

Defense factors
o Extenuation
o Mitigation
US v. Rosato
US v. Perry

Child sodomy/batter under 16, Art 125 & Art 128-4 years, bad conduct discharge,
demotion, pay and allowance forfeitures. Fine line between community conscience
and call for retribution to individualized punishment that fits the crime. General
deterrence of others can be one factor in sentencing recommendations.
Δ wanted to read an unsworn statement during sentencing about a rehabilitation
squadron that several persons told him about. How it was successful, hard to get
through, and he would get counseling he needed. Hearsay is admissible in an unsworn
statement. Unless this is a clear waste of the court’s time or gratuitously long it
should be admitted, because it is unsworn and the Δ has a right to extenuating and
mitigating circumstances in sentencing
Mixed guilty/not guilty pleas-sodomy/conduct unbecoming. Military policy to recoup
Academy or ROTC scholarship tuition of cadets removed from the program without
completing their service commitment. Δ wanted to include this likelihood if he was
going to be found guilty. Judge refused, the reimbursement isn’t in the law before the
court for sentencing and second it is the purview of the service secretaries on
whether or not to recoup money; it’s not a foregone conclusion.
Punishments
o Possible: no punishment, reprimand, forfeiture of pay and allowances, fine, demotion,
hard labor w/o confinement, punitive separation, death, and those punishments under
the laws of war
o Military Judge/Panel cannot order: restitution, psychological treatment, or reduction
from sentence, if given by the panel.
o Depends of the Court Martial level: Special, Special with BCD, General Court Martial
o There are maximums but no guidelines to stay within
o Convening Authority may certify or reduce the sentence, grant clemency
US v. Sales
Guilty by substitutions of lewd and lavicous acts as well as consensual sodomy. The
crimes themselves were for the same act and therefore multiplictous and therefore
could not be counted twice for sentencing purposes
o
US v. Loving
Death Penalty Cases-must have at least 12 panel members. Most courts martial have
more than 12 in order to prevent no death in a case where panel members have to be
excused
 Four Gates to Death Penalty
 Unanimous guilty
 Unanimous aggravating factor, promulgated by POTUS in RCM 1004(c)
 Unanimous aggravating factor which outweighs any mitigation or
extenuating factors
 Unanimous death penalty sentence
Murdered two taxi drivers and attempted a third outside Fort Hood, Texas.
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Military Justice Outline 2012 (Schenk)
Premeditated murder committed during a robbery where he was the trigger man.
Found guilty of both counts. Challenged the right of POTUS to promulgate the
aggravating factors, said only Congress could do this—dismissed by SCOTUS.
Post Trial Review Process and Procedures


Each level can give clemency/lower the sentence/remand to a lower court for rehearing
Convening authority gets trial packed and recommendation from SJA
o Concise packet with a clemency recommendation, copy of the trial, and pretrial
agreement
o Must be open to the duties of clemency
US v. Davis

Convening Authority
o 10 days to submit appeal matters to the convening authority for clemency
 Can be extended up to 30 days
 Waived clemency if not submitted timely
o If the Convening Authority makes no action then it is understood approval of the court’s
findings
US v. Travis



Found guilty of using cocaine and marijuana by an officer panel. Bad conduct
discharge and 3 months confinement. Convening authority gave multiple briefings on
the illegal drug problems in the military and the need for unwavering punishment
with no opening for clemency. Disqualifying factors: 1) An accuser, personal interest
bias against the accused; 2) inelastic attitude towards the duty regarding clemency
Marine and other guards guilty of abuse of detainees in Iraq. Trial held at Camp
Pendleton, CA and the SJA and the convening authority were in Iraq. Emails between
SJA and defense counsel regarding a letter from LTG Mattis, who was the USFI/CC and
highest ranking Marine in Iraq). The Δ has the responsibility of timeliness but the SJA
also must ensure all materials make it to the Convening Authority. Then moves to a
harmless error determination
Review by the Service JAG
o As a matter of law if the GCM Convening Authority did not take corrective action as
recommended
o Review on new evidence, fraud, jurisdiction, an error prejudicial to the substantial
rights, and sentence appropriateness
o May modify, set aside, set a new hearing
Service Courts of Appeal
o Art. 66-automatic review to the service-respective courts: death, life, punitive
discharges, 1+ year confinement—unless waived or withdrawn, the death penalty cases,
cannot have a waiver of appeal
 Review both legal and factual errors and can only affirm those facts and law are
correct
 May set aside for lack of insufficient evidence; also may find guilty on a lesser
included offense if there is sufficient evidence
US Court of Appeals for the Armed Forces and SCOTUS
19
Military Justice Outline 2012 (Schenk)
o
o
o
o
US v. Goldsmith

Discretionary in its appeals except for death penalty cases
 On good cause w/in 60-days of the Service Courts of Appeal
May only review issues which were certified by the Service Courts of Appeal
Affirm, set aside, remand
Writ of certiorari to SCOTUS only when heard by Court of Appeals for the Armed Forces
(SCOTUS won’t hear denials of appeal)
Using the All Writs Act, courts may only review those items that are under their
jurisdiction and only when there is no other way to appeal a decision. Dropping
persons from the service rolls is not a judicial decision, it is an executive
administrative decision
Delays in Appeals Process
o Art. 59(a)-Appeals require an error of law which materially prejudices a substantial right,
only looking at the trial
o Art. 66(c)-the Service Court may only approve the findings and sentence when there are
no errors of law or fact when viewing the entire case, including the post-trial timing
o Unreasonable delay in appeal presumed if:
 No action on appeal within 120 days of trial completion
 Wasn’t docketed on Service Appeals Court within 30 days of convening
authority action.
 Not review by Service Appeals Court within 18 months of docketing
o Balancing factors
 Length of delay
 Reason for delay
 Δ Assertion of timely appeal
 Whether this was prejudicial
US v. Moreno
US v. Harrow
US v. Allende
After being convicted of rape and sentenced, discovered a panel member conducted
their own investigation and should have been disqualified from the panel. The delay
was unreasonable because went over 120 days, 30 days with the convening authority,
and the 18 months to the appellate court. All delays belong to the prosecution, even
if they are caused by defense delays. Δ doesn’t have to request a speedy trial; as
long as you have a valid appellate issue then you can raise the appeal.
Unpremeditated murder of infant and larceny. Alleged evidentiary and guilty plea
problems. Took over four years to complete the Art. 66 review process and found to
be per se unreasonable. The length of delay, why delayed, appellants assertion to
timely appeal—almost always s present and aren’t debated. Hinges on the prejudice
to the defendant-is it keeping the defendant in jail longer than they would have been
in without the delays in the appeals process (weight of the evidence against the
defendant for the charges).
Larceny, false pretenses, violation of a lawful order. Seven year delay between court
martial and the appellate review. Automatically considered an unreasonable delay.
This appeal caused him not to be issued a DD-214, and couldn’t get civilian
employment because he had no proof of service. Showed no proof of this hiring
problem-letters from prospective employers saying they would’ve hired him if not for
the lack of a DD-214.
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Military Justice Outline 2012 (Schenk)

Parole, Boards for Correction of Military Records, and Pardons
o Every prisoner has a minimum release date
 Calculate good conduct time, work credit
o Can get clemency, parole, early release dates
o Not given parole have a mandatory supervised release program
US v. Pena
Required to go on supervised release which is a program mandated by the executive.
Δ didn’t want to be on the supervised release and there were additional requirements
because he was a sex offender (registration, living and employment restrictions). For
collateral consequences Δ must prove they increase his punishment for them to be
overruled: 1) Cruel and unusual punishment; 2) Lengthen sentence; 3) Does this
comport with the guilty pleas’ terms?
21