Saturday, October 19, 2019

A non-comedy of errors: the Kunishige case

On October 17, 2019, the U.S. Navy-Marine Corps Court of Criminal Appeals decided United States v. Kunishige, No. 201800110. The case raises a plethora of issues, chiefly, but not only, just how far off the rails member selection can be under Art. 25(d)(2), UCMJ. Strongly recommended for close study. Comments are particularly invited.

What lessons should be learned?
Why aren't any names named?
Should anyone be disciplined?
Is training deficient for commanders, staff judge advocates, trial counsel, military judges?
Should United States v. Bartee be revisited, as the concurring judge recommends?
Since when can personnel lawfully volunteer for duty as panel members?
Should Art. 25, UCMJ, be amended?


  1. Bartee should be banished from military jurisprudence. As then CJ Erdman predicted, it would become a road map on how to stack a Panel and simply flies in the face of the Legislative History of Article 25.

    Kudos to the panel in Kunishige for both identifying the problem and coming up with a creative, but appropriate solution. But, as you suggest Gene, the more fundamental question is why or how did this come to be?

    First, an observation but not a criticism. As Prof. Jonathan Lurie has aptly documented in his history of the CMA/CAAF, one of the very things that brought about the "civilian" "Supreme Court of the Military" that Congress created in the then, CMA, were antics such as done here and in Bartee. Today's active CAAF judges, were all relatively senior JAGs - something that could cause reasonable minds to infer an appearance of institutional (military) bias. And it does not appear that collectively, the CAAF's judges have much civilian litigation experience, especially in federal courts. Like languages, exposure to other languages and cultures, helps put things into a better perspective.

    For example, CAAF went on for pages in US v. Voorhees, 79 M.J. 5 (CAAF 2019), castigating an out-of-control Trial Counsel, for various forms of prosecutorial misconduct, reamed Appellate Government Counsel and other JAGs involved for lack of supervision, but then declined relief, to include exercising any type of "supervisory" jurisdiction. [DISCLAIMER: I am now Major Voorhees counsel].

    Clearly, the "Discovery" violations identified by the NM CCA are (and should be) troubling to anyone involved in the military justice system. In the federal civilian sector, contempt-of-court citations would be flying in all directions, and they should have been here as well - especially as the true state of facts came to light, albeit long after the fact.

    There are, imho, many factors at work here; the lack of military justice/trial experience for most of the players; a MJ who didn't hold the government's proverbial "feet to the fire," on the on-going discovery problems; Trial Counsel's misrepresentations to the MJ; an SJA's office whose "advice" to the CA was at best, dubious; and so on.

    Lastly, a small but significant fact, again warranting kudos to the NM CCA Panel - Kunishige was argued on 20 SEP 19; the lengthy, well-reasoned and juridically sound decision. was rendered less than a month later, on 17 OCT 19. This is an exceptional marshaling of judicial resources where the appellant is incarcerated. My 2 cents, plus the rest of my pocket change!

    1. Don, thanks for this strong comment. The Kunishige case should be required reading for point after point. I've only been at this for 50 years, but until now I had never heard of a case (maybe there's one out there somewhere) where one panel member got to pick other members.


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