Are all Military Judges Impartial?

In an unpublished opinion, the Navy and Marine Corps Criminal Court of Appeals (NMCCCA) determined that a military judge demonstrated bias during a post-trial event. It appears that a few weeks after the judge sentenced one Corporal Sanders, the judge spoke for two hours to five junior Marine Corps officers during a PME regarding the practice of military justice. Two of these officers provided written statements, in which they claimed the judge had referred to defendants as “scumbags”, and further stated the Commandant of the Marine Corps and Congress wanted more convictions.

Subsequently, Corporal Sanders brought an appeal seeking to disqualify the judge for his inflexible attitudes about sentencing and his perceptions of the Commandant and Congress’ intent to enter into his deliberations. The court, while conceding the military judge’s bias, concluded that there was no evidence to suggest that there was a reversible error; to the contrary, the NMCCA suggested that the sentence was correct in law and fact. Expect appellate defense counsel to appeal this case to CAAF.

Citations: United States v. Sanders, NMCCA, 2012 Feb 2

CAAF to Decide What Constitutes a More Severe Punishment

In United States v. Altier, the CAAF will hear argument from appellate who seeks relief from a sentence received during rehearing that he believes is more severe than the sentence given initially, in violation of Article 63 of the UCMJ. Petty Officer First Class Altier was convicted at a special court martial and given a bad conduct discharge; however, due to improper oral and written sentencing instructions, the case was reheard. At this rehearing, Altier was sentenced to a reduction in rank, loss of pay, 45 days of hard labor, but no punitive discharge.

Altier seeks relief from CAAF, arguing that the second sentence contains punishments in excess of what was originally charged (i.e. 0 days hard labor initially, compared to 45 days of hard labor at the rehearing); the government contends, however, that the severity of a bad conduct discharge in the long term is significantly less severe than the temporary punishment of hard labor, and is within the limitations expressed in Article 63 of the UCMJ.

The court is likely to establish a bright line, mathematical test for the application of Article 63.

Citations: United States v. Altier (N-M Ct. Crim. App., April 30, 2012)

CAAF to Determine if the Constitutional Right to Privacy Applies Equally to Active Duty Military

CAAF will hear argument as to whether sodomy between consenting adults is protected under the Constitutional right to privacy established in Lawrence v. Texas. In the present case, the respondent was engaging in an indecent act with a female while permitting another male to videotape the encounter; respondent was subsequently charged with rape and indecent acts; CAAF is only considering the indecent act as it relates to Lawrence and the servicemember’s privacy rights.

The respondent argues that, in accordance with the test established in Marcum (where the Supreme Court established a three-factor test requiring the actions to be private, outside the scope of Lawrence, and the actions must not have additional factors that were relevant solely in a military environment) that the activity was wholly private despite the presence of a third party videotaping the incident and therefore falls within the private conduct protected under Lawrence.

The government argues, however, that the activity was openly public and notorious, while noting that the mere act of filming sexual conduct is a punishable offense under the UCMJ, and thus the actions taken by respondent do have additional facts that are relevant solely in a military environment.

It will be interesting to see how broadly CAAF is willing to interpret the rights protected under Lawrence v. Texas in a military setting, especially considering the political implications associated with the repeal of DADT.

Citations: Lawrence v. Texas, 539 U.S. 558 (2003); United States v. Goings 11-0547/AR; United States v. Marcum, 60 M.J. 198

Security Clearances Struggles - Tips for the Applicant

In the wake of PFC Manning’s breach of national security information, it bears worth mentioning the significant hurdles many military members may have obtaining and retaining an active security clearance while serving in the military.

The denial or revocation of a security clearance can be devastating to a servicemember’s career, as many occupational specialties require them. Military intelligence, communications, and operations generally all require a security clearance to be obtained prior to beginning the occupational specialty, and must be reconfirmed through additional background screening every 5 to 10 years.

The most common reason for the denial or revocation of a security clearance is because of financial insolvency, past or present. In order to mitigate this potential problem, be sure to clear up any bad or outstanding credit history to the greatest extent possible prior to applying for a clearance. Additionally, be forthright with your command or security officer prior to applying; potential areas of concern that are addressed at the time of application are generally treated more favorably than those discovered by security investigators.

If you believe that you have been unreasonably denied a security clearance by your command, you are entitled to receive a letter explaining the reason for the denial of your clearance. If you believe the denial to be in error, you are also entitled to an administrative appeal. Consult with your unit’s security officer for more information concerning your security clearance and the process by which it is approved.

If you are facing a courts martial or other criminal hearing, contact our office today to discuss your case.

Categories: NMCCA
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