Tuesday, March 20, 2018

Knocking out the judge

There's been a remarkable decision from the U.S. Air Force Court of Criminal Appeals. In United States v. Vargas, No. ACM 38991 (A.F.C.C.A. 2018), the primary issue was whether the military should should have recused himself because he was a material witness with respect to the apparently improper removal of another military judge from sexual assault cases. The recusal issue was directly related to a claim of unlawful command influence (UCI).

Judging by the opinion, which for some reason doesn't name names, a number of lawyers and several judges knew about a concerted effort to remove the original judge. It is unclear whether any of them will be subject to professional discipline or removal from the bench. Such matters are typically handled under the radar.

The Air Force Court held that the second judge's refusal to recuse was an abuse of discretion, set aside the findings and (29-year!) sentence, and authorized a rehearing. It did so without addressing the merits of the UCI issue. See p. 11. But in serious UCI cases, dismissal with prejudice is a possible outcome. This is plainly such a case. That being so, one wonders why the CCA did not order an evidentiary hearing on the UCI issue before a judge from another armed force. Presumably, the UCI issue will now be renewed before whichever judge (from whichever armed force) is lucky or unlucky enough to inherit this case.

Air Force judges currently serve on an at-will basis. Unlike the Army and the Coast Guard, the Air Force (like the Navy and Marine Corps) has never seen fit to create terms of office of any duration by rule. Will the three-year terms with which it will soon have to live under the 2018 Manual for Courts-Martial changes stiffen anyone's back or prevent a recurrence? Might there be some different structure that would better foster public confidence in the administration of justice?

The U.S. Court of Appeals for the Armed Forces should grant review if this case comes to it. It should invite amici curiae to participate. If, as history suggests, the flaw that at least in part explains what happened in Vargas is structural, Congress needs to get back to work now, before the new changes take effect.

Minors in Israeli military courts

B'Tselem, a Jerusalem-based NGO, has just released Yael Stein's Minors in Jeopardy: Violation of the Rights of Palestinian Minors by Israel's Military Courts, available here. A summary can be found here. Excerpt:
The military juvenile court does no more than approve plea bargains

The military juvenile court came into existence in 2009 and has been operating ever since. The state considers its establishment a landmark achievement in the protection of minors’ rights in the military justice system. In practice, however, it has failed to improve the safeguarding of the rights of minors facing charges.

The jurisdiction of the military juvenile courts does not extend to minors’ remand hearings, both pre- or post-indictment, despite there being no substantive reason for this limitation and even though the hearings constitute a major part of the legal proceedings against the minors. Remand hearings are held at the ordinary military court. However, when one of the detainees whose case is being heard on a particular day is a minor, the judge instructs the adult detainees and the spectators to leave the courtroom, and hears the minor’s case separately. Yet it is still the same military judge, and it is still the same military courtroom.

The military juvenile court is given the authority to hear the trial itself. Yet trial hearings are very rare because the overwhelming majority of the cases are closed in a plea bargain between the defense and the prosecution; the prosecution usually drops some of the charges, the defendant pleads guilty to others, and the parties agree on the sentence, including the length of the prison term and the fine to be paid. The reason that so many defendants are prepared to enter into plea bargains is the military courts’ policy on detention which results in minors being kept in custody from the time they are arrested until after they serve their prison sentence.

Going through trial while in prison is fraught with a host of difficulties, including multiple, exhausting trips back and forth between the detention facility and the court. In addition, defendants know that if convicted, they will surely be given a prison sentence, and that even in the extremely unlikely event that they are ultimately acquitted, they will probably have been behind bars – in custodial remand – the same or more time as the prison term they would get in a plea bargain.

All this results in a situation in which the military prosecution rarely has to go to trial, in which it would have to present evidence of the minors’ guilt and give them the chance to refute it by examining witnesses and presenting alternative evidence. It is thus that the role of the military juvenile court is reduced to signing off on plea bargains already reached between the prosecution and the defense.

Monday, March 19, 2018

Obedience to orders

The American Constitution Society for Law and Policy has just released an issue brief by Christopher Fonzone titled What the Military Law of Obedience Does (and Doesn't) Do.  You can find it here. According to the author, "the military law of obedience is a doctrine designed to protect service members from having to obey manifestly illegal orders. As the response to then-candidate [Donald J.] Trump’s comments on waterboarding and the targeting of civilians demonstrates, the doctrine helps ensure that the U.S. military does not transgress clear and well-known legal commands. But what the law of obedience most distinctly is not is a tool for saving the Nation from simply unwise or legally contested orders."

Judge halts UK recruit abuse trial after RMP failures

In 2014 allegations emerged of wide scale abuse of recruits at the Army Foundation College, a training establishment at Harrowgate in Yorkshire. An investigation by the Royal Military Police led to 18 NCOs and SNCOs being charged with assault and ill-treatment of subordinates. Three trials were to take place, "the Harrowgate 10", "the Harrowgate 2" and "the Harrowgate 6". Today Assistant Judge Advocate General, His Honour Judge Alan Large stayed "the Harrowgate 10" trial as an abuse of process after it emerged that the RMP decided not to investigate evidence pointing away from the defendants' guilt. Judge Large condemned the RMP for a "seriously flawed" and "totally blinkered approach" to the investigation.

The Prosecution offered no evidence against "the Harrowgate 2" and "the Harrowgate 6".

Details of the trial and the comments from the solicitor for three of the accused can be found here and a summary of the evidence that was heard before the trial was stopped can be found here.

The case has led to calls from the campaign group Liberty.

While the case has raised significant concerns about the RMP's decision and training it is important to note that the case was stopped following defence applications to an independent judge. Colonel Simpson, Deputy Assistant Chief of Staff has said "Given this ruling, the Service Prosecuting Authority and the Royal Military Police will be conducting a review to ensure that lessons are learned", perhaps the first lesson for RMP is be sure your sins will find you out...