Friday, June 12, 2020

COVID-19 and military justice (U.S. Air Force)

So why is this case of alleged off-base crime by a member of the U.S. Air Force headed for a court-martial rather than the civilian criminal justice system it began in? Here's what the Rapid City, SD newspaper says:
James Cunningham, 26, was charged March 3 with aggravated child abuse for allegedly admitting to punching his baby in the head at their Rapid City home.

His charge was upgraded to second-degree murder after the five-month-old died nine days later after being airlifted for treatment at a hospital in Sioux Falls.

Cunningham had already made several appearances at the Pennington County Court when the Air Force requested to take over the case in early May, said Lara Roetzel, chief deputy at the state’s attorney office.

The Air Force has the power to take jurisdiction over cases involving airmen even if the crime occurred off base, Roetzel said.

Roetzel said her office consented to the transfer because her office is already crunched for time due to coronavirus-related furloughs. She also said military court is comparable to civilian court, while military prisons are tougher than South Dakota ones.

The Air Force works “towards maximizing jurisdiction over our airmen,” Lt. Joshua Sinclair, an Ellsworth spokesman, said when asked why the Air Force wanted to handle the case. “The military justice system is designed to promote justice and to maintain good order and discipline in our service.”

Cunningham is charged with murder under the Uniform Code of Military Justice for engaging in an act that is “inherently dangerous to another” and shows a “wanton disregard of human life,” Sinclair said.

He said the maximum punishment is life in prison without parole, a dishonorable discharge, reduction to the lowest enlisted grade and forfeiture of all pay. Cunningham would have faced a mandatory punishment of life without parole under South Dakota law.
Sorry, folks, but this is wrong.

First of all, the case is not being "transferred." Both the state and the Air Force can prosecute. What's happening is simply that the state prosecutor is not prosecuting.

That said, consider what's going on.

The accused is losing his right to a 14th Amendment-compliant (unanimous, 12-member, randomly-selected fair cross-section of the community) jury and will now have a military judge with only a three-year term of office, R.C.M. 502(c)(3), rather than a state circuit judge with an eight-year term of office, all because of an arrangement between two prosecutors. He's also apparently now facing a harsher sentence if convicted. And because of the discriminatory limit Congress has placed on GI access to the Supreme Court, his right even to seek review there in the event of conviction will be significantly dicier than if he were tried in state court.

And why?

Because the Air Force's druthers are to "maximize" its military justice jurisdiction ("Convening authorities and SJAs foster relationships with local civilian authorities with a view toward maximizing Air Force jurisdiction," AFI 51-201 ¶ 4.17) (does any other service admit to having such a policy?) and it has room on its docket, whereas COVID-19-related furloughs have created staffing problems for the local prosecutor. Is that office shut down? How about finding a prosecutor from another county?

Are military prisons "tougher" than South Dakota's? Is that a factor the state's prosecutors should be relying on, even if it's true?

Did I mention that there is nothing inherently military about the charged offense, so no claim can plausibly be made that specialized know-how is required or even helpful to try this case.

The military justice system is not a catch-all or spillover system to pick up the alleged slack for local prosecutors. This is an abuse.


  1. Gene, as you note, this is just wrong on so many fronts, to include a couple you didn't comment on (and I'm letting the Pink Elephant out of its cage here):

    (1) It is dubious that the Accused will have as experienced and as competent counsel in the military setting. This is not a bash on the many fine AF ADC's out there (after all, I was one twice) - it is simply a fact based upon the fact that there simply are not that many AF Defense Counsel experienced in complex homicide cases, whereas most civilian Public Defenders Offices generally have a specific homicide unit or violent felony unit [did that too for 11 years] to deal with such cases -- the option of course would be to activate a Reserve JAG with significant homicide defense experience, unlikely in this climate;

    (2) The disparity in available resources available in fact (versus in theory) to military defense counsel, e.g., a LWOP sentence is in fact, simply a death penalty sentence albeit by a slower procedure, and when was the last time that the AF (or any service for that matter) approved a mitigation specialist for a "non-capital" case? Additionally, whoever the best AF pediatric forensic pathologist is, has no doubt already been detailed to the prosecution "team," and what hoops will the defense have to jump through to get their own suitably qualified expert as opposed to "accepting" the AF's hand-me-down one? Since the child was in the hospital for 9 days (assuming it wasn't a "discontinue life support" death, (raising a host of other causation issues), is the defense going to be provided with a pediatric nurse-paralegal [something that almost all competent personal injury law firms use or have on staff], to review and summarize in "plain English" the voluminous medical records from no doubt 9 days of pediatric ICU, etc.?

    (3) It also deprives the Accused of his right to have a Grand Jury indict him as South Dakota still uses traditional Grand Jury procedures which, unfortunately, as I read their statutes on Grand Juries, Chap. 23A-5, SoDak Laws, provides more protection (at least in theory) than the current Art. 32, "Preliminary Hearing," a worthless, useless legal appendage in its present form.

  2. One other thing . . .

    And, let me throw this out for your thoughts, observations, and commentary. Some years ago I had a client [civilian] charged with Bank Robbery -- he was caught shortly thereafter by the local police, charged and arraigned in State Court where I was assigned. There was a Preliminary Hearing, and he was "bound over" for the Grand Jury and indicted the following week, and arraigned on the indictment in State Court. A couple of weeks later, he's indicted by the fed's on the same charge -- why? Much greater sentence potential by the feds.

    A few days later, the State Court Judge calendars the case for Dismissal. I file a response objecting to this knowing full well that our State DA would re-file if my client got a sweet Federal deal [who by then we'd discovered had severe mental health problems, as he'd been released from 3 years of institutionalization 1 day before the bank robbery [hey, he needed money and didn't have a job and that's what banks do, they give you money!].

    My objection was that it was an abuse of discretion to administratively dismiss the Indictment on the wish of the DA where the "People" had spoken via "their Grand Jury" and indicted my client for the offenses - knowing that the federal judge had approved a deal which was to defer the plea/sentencing until after we'd tried the State case - UNLESS the Indictment was dismissed with prejudice, to protect my client's "double jeopardy" concerns. The State judge, knowing of the pending federal case, just wanted it off his docket so told the DA that he'd only grant the dismissal if the DA dismissed with prejudice, which they ultimately did.

    I've done that one other time - again with unusual facts, but it worked. Obviously, State practices differ and vary, so it might not always be a feasible approach, cf. Hennis.

    Just my 2 cents. . . .

  3. Point well taken about loss of the right to state grand jury indictment, Don. I also want to stress that there's no question that such a case can constitutionally be tried in a court-martial, thanks to Solorio v. United States (full disclosure: I represented the ACLU as an arguing amicus curiae in the Supreme Court in that case), but that doesn't make this right. In partial answer to my own question about USAF policy to maximize court-martial jurisdiction, I checked the latest version of AR 27-10 and couldn't find a comparable voracious policy.


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