Passing of Steven S. Honigman (1948-2022)

Yesterday's New York Times included a notice of the passing of Steven S. Honigman. Steve had a distinguished career at the bar and in public service, including major contributions to military justice. He graduated from NYU and Yale Law School. After a federal court clerkship, he attended the Naval Justice School and served on active duty for four years in the Navy Judge Advocate General's Corps. For a number of years he chaired the Military and Veterans Affairs Committee of the Association of the Bar of the City of New York (a/k/a the New York City Bar), and shepherded through an important military justice reform proposal. He was a public member of the Military Justice Act of 1983 Advisory Commission and served for five years as General Counsel of the Navy during the Clinton Administration. In the Gilbert and Sullivan canon, Steve was especially partial to "I am the Monarch of the Sea (When I was a Lad" from Act I of HMS Pinafore. Sincere condolences to Steve's wife and daughter, Drs. Irene Finel-Honigman and Ana Finel Honigman.

Why might this be at court-martial?

KLDNews13 has a video report of a "Marine accused of fatally stabbing wife on H-3 could be turned over to the military for a court martial (sic)." The H-3 is one of Hawaii's Interstates, from the Honolulu area of Oahu island to Marine Corps Base, Kaneohe Bay. K-Bay, as we call it.

The report says that he is held in custody on second-degree murder charges. The reporter notes that the military has the death penalty. But the death penalty would only be for a conviction under UCMJ art. 118. Hawaii does not have the death penalty. 

The military equivalent of "second-degree" murder does not authorize the death penalty. I think voluntary manslaughter under UCMJ art. 119 is the closest analogy.

The spouse was pregnant, so the possibility exists of a second charge under UCMJ art. 119a at court-martial. Death is not an authorized punishment under this article. 

It does not appear the spouse is a service member.

The report notes (as we know) that civilian and military authorities frequently discuss jurisdiction when a service member is a suspect.

https://www.kold.com/video/2022/08/02/marine-accused-fatally-stabbing-wife-h-could-be-turned-over-military-court-martial/

Uganda CDF to Special Investigations Branch: "pull up your socks"

The General Court-Martial in Uganda has a new chairperson, Brigadier Freeman Mugabe. Video of the installation ceremony can be found here. At the ceremony, the Chief of Defence Forces, General Wilson Mbasu Mbadi, criticized the country's civilian courts for interfering with the military court's ability to process cases in a timely fashion. Uganda's military courts regularly exercise jurisdiction over civilians accused of weapons offenses, even though human rights jurisprudence strongly disfavors military trials of civilians and the African Charter on Human and Peoples' Rights is understood to bar it absolutely. 

D.C. Circuit decides Larrabee

A divided panel of the U.S. Court of Appeals for the District of Columbia Circuit today decided Larrabee v. Del Toro. The case concerns whether military retirees can constitutionally be tried by court-martial. The opinion of the court was written by Judge Neomi Rao. Judge Justin R. Walker concurred except with respect to Part III of the decision, concerning deference to Congress. Judge David S. Tatel concurred in part and dissented in part.

Perfect storm on E Street

Sunday marked one year since Chief (now Senior) Judge Scott W. Stucky's term on the U.S. Court of Appeals for the Armed Forces expired. The seat he held remains unfilled, although the nomination of Col. (ret) M. Tia Johnson was reported out favorably by the Senate Armed Services Committee months ago. The court has continued to hear cases with a full bench by drawing on its roster of eight senior judges (Senior Judges Andrew S. Effron, Susan H. Crawford, Charles E. "Chip" Erdmann, Margaret A. Ryan, Scott W. Stucky, and Walter T. Cox III have all pitched in).

But all is not well. On the contrary, the circumstances present an institutional perfect storm, with three unacceptable conditions conspiring to impede the fair administration of justice.

First, it is hard-wired into the UCMJ and title 28, U.S. Code, that the Supreme Court can only entertain a petition for certiorari from a case decided by CAAF on petition for review if CAAF has granted discretionary review. This means that the lion's share of the cases that come before CAAF are never eligible for direct review by the Supreme Court. That's on Congress. While many petitions to CAAF are submitted each year without errors assigned by either appellate defense counsel or noted by the accused, scores of others do assign issues. Those cases, unconstitutionally, never qualify for Supreme Court review, unlike every other federal and state criminal appeal, including military commission cases. As of the first anniversary of the Stucky vacancy, CAAF has denied review in a whopping 263 petition cases.

Second, CAAF has made it harder to get a grant of review by refusing to call upon senior judges to fill out the bench for consideration of petitions for review. This means that instead of requiring a 40% vote (2 out of 5) to secure review (and access to the Supreme Court), a 50% vote (2 out of 4) is required. This is on CAAF. CAAF could reduce this unfairness by granting all petitions that assign errors and acting summarily on those that do not warrant plenary briefing and oral argument; by holding all petitions until the Stucky vacancy is filled (or doing so if requested); or by calling on senior judges to vote on petitions for grant of review. Failing to do any of these is on CAAF.

Third, the Senate has failed to act in a timely fashion on Col. Johnson's Jan. 7, 2022 nomination. The nomination has been on the Senate Executive Calendar since Apr. 5, 2022. This delay is the result of an asinine hold placed on certain DoD nominations by fleet-footed Sen. Josh Hawley (R-MO) because he wants to have a public hearing into the chaotic U.S. withdrawal from the Kabul airport a year ago. [Objection! Irrelevant.] He insists that the Secretaries of Defense and State and the National Security Advisor all resign as the price of lifting his hold. That is chiefly on him but also on the Senate, the rules and customs of which tolerate this kind of misguided tactic. The result is the longest hiatus on the military's high court in decades.

Apart from the unfairness to the nominee, the combined effect of these three factors is to shortchange scores of GIs. Every member of the armed forces who has an articulable legal claim in connection with a court-martial has a right to the same access to the Supreme Court as everyone else. GIs haven't gotten a fair shake since 1951, when the UCMJ went into effect without provision for Supreme Court review; they haven't gotten it since the Supreme Court got the power to review a limited category of military cases through the Military Justice Act of 1983; and they certainly haven't gotten it since Aug. 1, 2021.