The one where the 'Judge' and 'Defendant' didn't know...

Tom Deacon

Regular readers may well remember a strange consent order which emerged in the case of Tom Deacon, an RAF veteran challenging a conviction for criminal damage imposed by his commanding officer. Although we still don't know what induced the Judge Advocate General (His Honour Judge Jeff Blackett) to accept he had acted unlawfully we now have the transcript of the subsequent hearing before the Vice Judge Advocate General (His Honour Judge Hunter), it makes interesting reading . . . .

Mr Deacon, representing himself, was applying to appeal against his conviction out of time. Those convicted by summary dealing have an unfettered right to appeal to the Summary Appeal Court within 14 days of the conviction. This right is seen as vital to the continued existence of summary dealing as the process does not conform to Article 6 of the European Convention on Human Rights. However Mr Deacon's appeal was nearly seven years out of time. The appeal is a rehearing of the case before a judge advocate general and two officers, the equivalent to an appeal from the civilian magistrates' court to the Crown Court.

GITMO nondevelopments

Pool photo of sketch by 

courtroom artist Janet Hamlin

Time reports:

A military judge has cancelled an upcoming pretrial hearing for September 11 suspects held at Guantánamo Bay, according to a Reuters report.

The judge (Colonel Pohl?) cited lingering issues related to conflict of interest, according to a Defense Department spokesperson. The defense attorneys said they had been spied on by the FBI, an occurrence which created a conflict of interest between the lawyers and their clients.

Air Force unlawful command influence decision

Over at CAAFlog, Zach Spilman has a post (with lively discussion, much of it over commenters' real names) on a recent U.S. Air Force Court of Criminal Appeals case in which a staff judge advocate telephoned the supervisor and senior rater of a military judge about the judge's rulings on repeated government motions for an Article 39(a) session. The SJA's ex parte calls were entirely improper and it is shocking that after all these years the SJA and the two SJAs higher in the food chain with whom he consulted thought otherwise. Similarly, the judge's supervisor should have told off the SJA rather than pass along the complaint to the trial judge.

The only thing that's good about this case is that the facts were made a matter of public record. The opinion -- how come it's unpublished? -- unfortunately does not reveal the pay grades of the involved officers. Did rank play a role in their interaction?

Note to Air Force TJAG, Military Justice Review Group: Whatever other remedial or disciplinary actions might be appropriate, wouldn't this kind of thing be less likely to occur if Air Force judges, like those in the Army and Coast Guard were afforded fixed terms of office? Time for the Air Force to get in step? Is it a coincidence that United States v. Salyer, 72 M.J. 415 (C.A.A.F. 2013), cited in the CAAFlog post, also arose in a branch of the service that still relies on at-will judges?

Louisiana military judge sworn in

Baton Rouge attorney Col. Connell L. Archey of the Louisiana National Guard has been sworn in as the state's fifth military judge. He will preside over courts-martial conducted under the Louisiana Code of Military Justice. The news reports do not indicate whether Judge Archey enjoys the protection of a fixed term of office like the 4-year term afforded to justices of the California National Guard's appellate panel. [Postscript: there is no fixed term.]

Rulings of Louisiana's state military judge are subject to review by the Court of Appeal, First Circuit. See, e.g., State v. Malone (2009) (reversing contempt finding against judge advocate); see also State v. Davis, noted here by Phil Cave in 2010.

Iraqi officers to be tried for loss of Ramadi

Acting on the recommendation of an investigative commission, Prime Minister Haider al-Abadi of Iraq has announced that the Army commanders responsible for abandoning Ramadi to the Islamic State will be tried by court-martial. Deutsche Welle's story appears here. Given the subject matter and circumstances, it will be surprising if the proceedings are open to the public.