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The author of this article clearly doesn’t understand.  THE BIGGEST OBSTACLE TO THE PENTAGON’S WAR ON SEXUAL ASSAULT: THE MILITARY JUSTICE SYSTEM: A legal principle intended to protect service members after World War II has spawned a dangerous precedent.

Amy Howe, SCOTUSBlog reports on a new decision relevant to military practitioners.

Opinion analysis: Justices decline to extend Fourth Amendment’s “automobile exception”

The Supreme Court, however, “has long recognized that the military is, by necessity, a specialized society separate from civilian society” and “that the military has, again by necessity, developed laws and traditions of its own during its long history.” See Parker v. Levy, 417 U.S. 733, 743, 94 S. Ct. 2547, 2555, 41 L. Ed. 2d 439, 450-51 (1974). Moreover, in Parker v. Levy, where Dr. Levy had attacked his convictions under.  Articles 133 and 134 of the Uniform Code because of the claimed vagueness of these punitive articles, the Supreme Court pointed out:

Decisions of this Court during the last century have recognized that the longstanding customs and usages of the services impart accepted meaning to the seemingly imprecise standards of Arts 133 and 134.  In Dynes v. Hoover, 61 U.S. (20 How) 65, 15 L. Ed. 838 (1857), this Court upheld the Navy’s general article, which provided that “[a]ll crimes committed by persons belonging to the navy, which are not specified in the foregoing articles, shall be punished according to the laws and customs in such cases at sea.” The Court reasoned:

“[W]hen offences and crimes are not given in terms or by definition, the want of it may be supplied by a comprehensive enactment, such as the 32d article of the rules for the government of the navy, which means that courts martial have jurisdiction of such crimes as are not specified, but which have been recognized to be crimes and offences by the usages in the navy of all nations,and that they shall be punished according to the laws and customs of the sea. Notwithstanding the apparent indeterminateness of such a provision, it is not liable to abuse; for whatthose crimes are, and how they are to be punished, is well known by practical men in the navy and army, and by those who have studied the law of courts martial, and the offences of which the different courts martial, have cognizance.”

Though not raised by Appellant, an error in the staff judge advocate’s recommendation (SJAR) compels us to remand the case for new post-trial processing.

United States v. Spelts, Air Force Court of Criminal Appeals (May 2018).

Now for this.

Friend DP notes a pending Supreme Court petition in Gamble v. United States.  It looks like the case was supposed to have been presented at Thursdays conference.

Issue: Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

If the court grants the petition and if the court rules in the petitioner’s favor this would be a big deal for military accused’s.  As we know, there have been quite a few cases over the years (I’ve had a number of them) in which the client was tried in civilian court and the military wants another go at it.  The general rule is that if tried in a state court or the District of Columbia that is a “separate sovereign” from the federal government.  Petitioner’s brief begins:

Meet service members entrusted with guarding nuclear missiles that are among the most powerful in America’s arsenal. Air Force records obtained by The Associated Press show they bought, distributed and used the hallucinogen LSD and other mind-altering illegal drugs as part of a ring that operated undetected for months on a highly secure military base in Wyoming. After investigators closed in, one airman deserted to Mexico.

This is from a recent AP report.

Here from 2016, U.S. Air Force investigates drug activity of nuclear security force.  https://www.cnn.com/2016/03/18/politics/us-air-force-drug-activity/index.html

Military personnel interviewed as a suspect by a MCIO are never told they are under arrest, but that’s the effect of the MCIO taking fingerprints, “mug-shots” and DNA.

Once “arrested” you become titled and that information goes into the federal data base.

Same if you are prosecuted, although the MCIO is supposed to update the information about you and your status.

I’m having a problem with some appellate cases.

The charges are referred, trial sessions are held, for one reason or another the charges are withdrawn, and then they come back.

When the ROT is prepared the earlier hearings are not part of the ROT, why not?

In United States v. Kelly, __ M.J. __, No.17-0559/AR the CAAF decides that a court of criminal appeals has the power to disapprove a mandatory minimum punitive discharge, reversing the published en banc (but non-unanimous) decision of the Army CCA.

While Congress changed the law to impose a mandatory dishonorable discharge in some cases, they did not change Article 66(c), UCMJ under which a CCA acts to determine whether or not the findings and sentence of a court-martial should be approved.  With this in mind, CAAF decides in favor of the CCA’s power to disapprove a DD.

Military personnel are told to believe the victim and consider the accused guilty unless, the quote from a former Air Force TJAG, there’s a silver bullet showing innocence.  But what if the silver bullet isn’t available.

Here the state trooper was saved by his bodycam from a false allegation.

An attorney is apologizing for spreading allegations that a Texas Department of Public Safety trooper sexually assaulted a woman during a traffic stop and arrest in North Texas. The apology came hours after DPS released two hours of the trooper’s body camera video.