Wednesday, March 14, 2018

Juvenile on juvenile sexual assault on military bases-what to do?

The media is reporting a problem on U.S. military bases.
"When the children of U.S. service members sexually assault one another on a military base there often is no justice.
That's because federal law governs civilians on many U.S. military installations, and federal prosecutors have little interest in pursuing juvenile sex assault cases. As a result, both victims seeking closure and young offenders needing treatment often receive neither, an Associated Press investigation found.
One solution, known as "retrocession," offers some hope."
Basically, retrocession means the military gives the cases over to the local prosecutor for action where the MCIO and command believe there are credible allegations. The process has been tried and seems to be working at several Army and Marine Corps installations.

Note we are talking about juvenile accused's who are not subject to UCMJ jurisdiction.

A decade after the Pentagon began confronting rape in the ranks, the U.S. military frequently fails to provide justice to the children of service members when they are sexually assaulted by other kids on base.
. . .
Instead of punishment or rehabilitation, young offenders may be shuffled into the civilian world.
The Pentagon doesn’t know the problem’s true extent, but officials promised “appropriate actions.”
Some have been trying to get Congress to allow local authorities to handle crimes against juveniles.  However, "Base commanders objected, and state officials worried they would inherit new problems, said Haines, a 29-year federal prosecutor who wrote a book about the issue."

[Federal Enclave Law, Atlas Books (2011) may be the book.]

A 2012 U.S. Attorney General National Task Force on Children Exposed to Violence describes some of the issues and also some of the proposed ways to address them.

Monday, March 12, 2018

Term of office, trial and appellate military judges

Gene has posted the changes to the Manual for Courts-Martial (MCM).  (I have started to bookmark it for my own purposes, and that version is here.)  There are a number of significant changes but I want to focus on just one for the moment because of its historical significance.  Rule 502(c)(3) MCM (2018) now provides:
"A person assigned for duty as a military judge shall serve as a military judge for a term of not less than three years, subject to such provisions for reassignment as may be prescribed in regulations issued by the Secretary concerned."
Worried that your court-martial judges will be independent rather than the wants and whims of commanders or others of influence?

When the Uniform Code of Military Justice was first enacted there was no set term of office--statutorily that gap with federal civilian judges continues.  Judge advocates would be assigned duties as a military judge in the normal process of conducting officer assignments.  Generally, military officers are assigned to duties or a unit for three years.  That assignment could be adjusted to be shorter or longer depending on the needs of the Service.  The underlying concern here is that a military judge's assignment could be shortened or terminated because leadership didn't like their judicial philosophy or rulings or findings or sentences.  Anecdotally, there have been some judges removed because of alleged unfitness, some of whom have been returned to the bench after an investigation.  There have been a number of published cases supporting concerns for judicial independence.
Unlawful "command influence is the mortal enemy of military justice." United States v. Thomas, 22 M.J. 388, 393 (C.M.A. 1986), cert. denied, 479 U.S. 1085, 94 L. Ed. 2d 146, 107 S. Ct. 1289 (1987). Indeed, even "the appearance of unlawful command influence is as devastating to the military justice system as the actual manipulation of any given trial. Cf. United States v. Cruz, 25 M.J. 326 (C.M.A. 1987)." United States v Allen, 33 M.J. at 212. Accordingly, we cannot countenance -- indeed, we condemn -- the calculated carping to the judge's judicial superiors [the then Deputy Judge Advocate General of the Navy] about his sentencing philosophy. Part of the trade-off in a system in which judges lack tenure and professionally survive only by grace, see United States v. Graf, 35 M.J. 450 (C.M.A. 1992), cert. denied, 127 L. Ed. 2d 206, 114 S. Ct. 917 (1994), is special vigilance to assure judicial independence. See United States v. Allen, [33 M.J. 209 (C.M.A. 1991)]; United States v. Mabe, 33 M.J. 200 (C.M.A. 1991).
U.S. v. Campos, 42 M.J. 253, 260 (C.A.A.F. 1995) (emphasis added).  How can that be fair, or perceived to be fair, if the military judge has a concern about his current or future assignments?  Would the military judge consciously or unconsciously lean in favor of the government and prosecution for personal and professional reasons--to the prejudice of the accused and a fair military justice process.  In a recent case with a tortuous appellate and trial history, the Navy-Marine Corps Court of Criminal Appeals (NMCCA) had this to say--in 2018.
R.C.M. 902(b)(5) targets a military judge's conflicts of interest by demanding disqualification when he or she "has a personal interest, financial or otherwise, that could be substantially affected by the outcome of the proceeding." In this context, a personal interest is "extra-judicial" as opposed to judicial. The UCMJ acknowledges and mitigates the personal interest that "results from the well-recognized effect of fitness-report evaluations on a military lawyer's service advancement and security." Article 26(c), UCMJ, prohibits a CA or any member of a CA's staff from "prepar[ing] or review[ing] any report concerning the effectiveness, fitness, or efficiency of the military judge so detailed, which relates to his performance of duty as a military judge." The Navy Performance Evaluation System Manual specifically addresses evaluation of the performance of military justice duties: "[Fitness reports] on military judges and appellate judges may properly evaluate their professional and military performance, but may not include marks, comments, or recommendations sbased on their judicial opinions or rulings, or the results thereof."
U.S. v. Hutchins, (N-M Ct. Crim. App. 29 Jan. 2018) (citations omitted).  To be clear, the CAAF finds there are sufficient safeguards in place.  See U.S. v. Mitchell, 39 M.J. 131, 142 (C.M.A. 1994).

With the background in mind let's litigate and see what can be done about terms of office as a way to protect judicial independence.

United States v. Graf
Appellant claims that his affirmed court-martial conviction was secured in violation of "the Due Process Clause" of the Fifth Amendment to the United States Constitution.  He asserts that the military judge who conducted his court-martial and the appellate military judges who decided his appeal had no "fixed terms of office" of any length. (Final Brief at 1.) He argues that the absence of fixed terms of office for these judges and their institutional control by the Judge Advocate General of the Navy precluded them from having the judicial independence required by this provision of the Constitution for judges in serious criminal cases. Accordingly, he asks that his court-martial conviction be set aside and that a new court-martial and appeal, if necessary, be ordered before military judges with some fixed term of office. E.g. Genereux v. Her Majesty The Queen, No. 22103, SCR (Sup.Ct. of Canada, Feb. 13, 1992).
United States v. Graf, 35 M.J. 450, 1992 CMA LEXIS 1032 (C.M.A. 1992) cert. denied Graf v. United States, 510 U.S. 1085 (1994).  The issue seemed dead until along came United States v. Weiss, 36 M.J. 224 (C.M.A. 1992), aff'd Weiss v. United States, 510 U.S. 163 (1994).  Weiss raised two issues: were military trial and appellate judges designated in violation of the Appointment's Clause, U.S. Constitution and the Graf issue.  Bottom line, the Supreme Court determined that "The absence of tenure as a historical matter in the system of military justice, and the number of safeguards in place to ensure impartiality, lead us to reject petitioners' due process challenge."  510 U.S. at 181.

War lost?  Battle won? War still going?

Apparently, the war was lost.  But, subsequent to the Graf and Weiss litigation, the U. S. Army and the U. S. Coast Guard each issued a regulation giving military judges a three-year term of office, similar to what is in the new Rule 502(c)(3).  The other Services declined to impose any regulation.  

Now, almost 25 years later, the President through his rule-making power in Article 36, UCMJ, has ordered all of the Services to have a fixed term of office--a uniform rule.  The question remains, is three years sufficient to ensure judicial independence.  Federal judges serve for life, federal magistrate judges serve for 10 years.

Is the response, "Your Honor, the prosecution rests."

Or should it be, "Your Honor, the prosecution requests you reconsider your ruling requiring a term of office for only three years for the following reasons."

Sunday, March 11, 2018

Lexsitus: new free resource for international criminal law research

As a U.S. military lawyer, the other day I realized that my work computer, for whatever reason, was not able to access many of the international humanitarian law blogs and source materials from the ICRC. This caused me to reflect on how the goals of international criminal justice depend so much on effective dissemination: the right legal materials, in the right language, available on time to the proper legal advisers, investigators, or judges. 

The Centre for International Law Research and Policy (CILRAP) seeks to address the challenge of dissemination through several of its initiatives. CILRAP is not just a Wikipedia of international criminal law but also a hub for original leading scholarship. 

The most recent CILRAP initiative is called Lexsitus. From the CILRAP website:

Lexsitus assists the learning of, and work with, legal sources in international criminal law. It provides structured online-access to AV-lectures, commentary, case law, preparatory works, and digests, at the level of each article and main provision of the Statute of the International Criminal Court. It contains more than 230 lectures by a Lexsitus Faculty of initially 50 leading experts in international criminal law from around the world. Lexsitus has been made by CILRAP, HELM Studio and Mithya Labs, with funding from the Norwegian Ministry of Foreign Affairs and the International Nuremberg Principles Academy, a key project partner. The Project has been academically co-directed by Professors Morten Bergsmo (Peking University Law School) and Mark Klamberg (Stockholm University), and the Lexsitus Project Consortium includes academics at Stockholm University, Peking University, National University of Singapore, Salzburg University, O.P. Jindal Global University, and the University of Oslo. You can access Lexsitus here.
Congratulations to the Lexsitus editors on this important achievement. Military lawyers ought to keep Lexsitus bookmarked -- and hope their government computers do not block it. 

Saturday, March 10, 2018

Whither Canadian military justice?

Global Military Justice Reform contributor Tim Dunne has written this critical Chronicle Herald op-ed about Canada's military justice system. Excerpt:
Change is overdue

Canadians tried before military tribunals are denied many rights guaranteed to a person prosecuted before a civil court. But the most striking is this denial of the right to a jury trial.

When paragraph 11(f) of the Charter was drafted and enacted, there was a requirement for a “military nexus” — a direct link to the circumstances of an alleged offence and the discipline, efficiency or morale of the military. Without this connection, military tribunals had no jurisdiction.

Did Parliament intend to deprive Canadian soldiers of their constitutional right to a jury trial for a serious criminal offence in no way related to military service or to the performance of their military duties?

At a Jan. 12, 1981 meeting of the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, the wording of what is now paragraph 11(f) of the Charter was tabled for the first time. Through 1980-81, there were discussions on a proposal by New Democrat MP Svend Robinson that military personnel be entitled to jury trials.

The only justification for the exception set out in paragraph 11(f) was provided by the then attorney general Jean Chrétien. He said, “Jury trials in cases under military law before a service tribunal have never existed either under Canadian or American law.”

A better reason is provided in Rubsun Ho’s 1996 article, “A World that has Walls: A Charter Analysis of Service Tribunals.” It says “the standard justification for allowing the military to deny an individual right to trial by jury is derived from the special conditions under which service tribunals may be forced to proceed.”

“During times of war or insurrection, convening a jury may be impracticable or unfeasible. The military hierarchy must be able to work efficiently and expeditiously to dispose of any disciplinary problems it may encounter, and wide discretion must be given to front line officers to enforce their authority.”

But this refers to military offences in a military context and in time of conflict, not to offences of a civil nature committed in peacetime in purely civil circumstances.

This begs the question: Are courts martial necessary in Canada in peacetime?

Should Italy abolish its military courts?

That is the question, according to this report in Il Dubbio. Dr. Gioacchino Tornatore of the Military Court of Appeal has argued against abolition on the occasion of the beginning of the judicial year, despite the Italian system's low numbers. Excerpt (modified computer translation):
He took the opportunity to launch an appeal to the future government for a wider jurisdiction to be entrusted to the military judiciary. In many instances these are cases of crimes already known for some time in the world of soldiers, while in others they are new, as in the case of defamation on social media, or sexist insults against military women in an environment with a strong chauvinist presence. Many cases resulted in  convictions; in others the proceedings are still pending. The statistical data on the work of the military courts are so insignificant that if they were evaluated according to the standards of the Ministry of Justice, the auditors would jump because according to the Ministry it is estimated that each court must cover a catchment area of ​​382,191 citizens; military justice, on the other hand, can count on three courts, in Verona, Rome, Naples, and covers a total of 310,000 people. In fact, many argue that it is better to integrate the military magistrates into the ordinary judiciary, perhaps creating specialized sections. Dr. Tornatore does not agree on this point and appeals to the future government. "In the last review by the legislature -- he said -- attention to the military magistracy focused nearly unanimously on the abolition of this special judicial system, with transfer of its current jurisdiction to the ordinary judiciary, with a view to unification of the courts and the possible creation of specialized sections that can continue to deal with the crimes currently reserved for the jurisdiction of the Military Courts. Tornatore is against doing so and sees as the solution "to give and return to the military judges jurisdictional powers that the ordinary magistracy is dealing with today". The debate on abolition is still ongoing.
Additional caseload data can be found here.