What the Manning Findings Mean

If you’ve been reading around the internet, you’ll find various accounts of the Bradley Manning court-martial. Trying to decipher the bottom line is difficult, if not impossible. The best digest I’ve found is here. H/T CAAFLog.

In summary, it states the following:

Bradley Manning has been found not guilty of aiding the enemy but still faces up to 130 years in prison after being found guilty on several counts of theft and espionage.

The military judge hearing the case, Army Col Denise Lind, gave her verdict at 1pm on Tuesday. The aiding the enemy charge was the most serious, as it carried a maximum sentence of life in prison without the possibility of parole.

However Manning could still face an effective life sentence after being convicted on numerous other counts. He was found guilty of five charges of theft and five charges of espionage as well as other offenses. His convictions carry a maximum sentence of up to 130 years in prison.

Manning’s sentencing hearing will begin tomorrow.

What does this mean? A few things.

1. He has been found guilty of most of the charges and their specifications, including those involving larceny and espionage. If I’m tracking it correctly, he was found guilty of 17 of 22 specifications outright and another 4 lesser included offenses.

2. He was found not guilty of the most serious charge, UCMJ Article 104, Aiding the Enemy. Most media outlets are focused on this one point. However, it is merely one of many charges. The others can add-up, as you’ll see in point #3.

3. He faces a maximum of 130 years (assuming the reporter’s calculations are correct). This assumes that the judge will not rule in Manning’s favor regarding the multiplicity (for sentencing)* of some of the charges. This can happen via defense motion or by the military judge sua sponte. In my experience, this happens with some regularity in courts-martial at the judge’s discretion. It can change the max possible sentence dramatically, or very little, it all depends on, well, a lot of things. Expect a motion from defense on this.

4. The minimum possible punishment is no punishment.

5. Sentencing is like a trial unto itself. Both sides will present witnesses, documentary evidence, and give sentencing arguments. Prosecution presents evidence to try and show aggravation. Defense submits matters in extenuation and mitigation. After that, the military judge will need to deliberate again. In short, there’s still a lot remaining.



*Multiplicity. Suppose a soldier is found guilty of two charges. One carries a max penalty of 10 years, and the other carries a max penalty of 15 years. This means a maximum possible punishment of 25 years (both added together).  If the judge finds in favor of the defense on multiplicity, the maximum punishment would be 15 years (the max of the most serious of the charges). In the discussion for Rule for Court-Martial 1003(c), the Manual for Court-Martial states, in part, that charges “may not be separately punishable if the offenses were committed as a result of a single impulse or intent.” So, this will be an interesting subplot during sentencing.


Cut Through the Manning Hyperbole

Cut Through the Manning Hyperbole

First, this headline is not entirely true. He will learn the findings of the judge (guilty or innocent of the charges to which he pleaded “not guilty.”). That will determine the maximum possible punishment. Then, the second phase of the trial begins, which determines sentence. The judge will have the authority to sentence him to anything from the maximum possible down to no punishment.

Talk all you want about what the actual punishment might be, we’re not yet close to that determination being made.

Second, this is an example of how we need to be cautious when reading headlines. While they should be a reasonable indicia of truth, they rarely are.

Death and Military Justice

I’ve talked about the military death penalty before.

If there is any question as to the value to be gained by seeking the death penalty at court-martial, use the past 50 years as a guide.

While I’m opposed to the death penalty on the simple basis that it involves killing a human being, look at this from a dollars-and-cents standpoint. Is it really worth all that money to prosecute and appeal when it amounts to little more than a life sentence anyway?

“Justice” at West Point

How many issues can one article possibly present?

I’ve always described the court-martial process as a meat grinder for the accused. In this case, James Taranto does a great job of distilling the story of a West Point cadet accused of sexual assault. Acquitted of the more serious charges, found guilty of making a false official statement, and kicked-out of the academy on this basis.

The most important lesson from this former Cadet’s saga: waive nothing.

Hasan Statement to Fox News

Nidal Hasan, acting in his own defense at court-martial, released a statement to Fox News. The report is here.

I found this on a day in which pro se lawyering supporters have been getting a bit of attention from legal blogs.

Naturally, when you’re looking for sympathy, you go to Fox News because of their bleeding-heart, left-leaning tendencies. Everyone knows this.


As Part of Our Defense…….an Op-Ed Written by Me

Somebody, anybody, please tell me how this helps further the defense case. I’m honestly open to any suggestions. Frankly, I fail to see where it is helpful in the presentation of a clear, coherent, and effective defense.

Let me see if I get this straight. Attack the alleged victim’s story? Check. Poke holes in the government’s case? No problem. Fight to exclude as much evidence as possible that is harmful to my client? Yep, gotcha.

Pen an Op-Ed in a major news source that argues the strategic merit of criminal law and policy, using my client’s case as fuel for my fire? I’m not seeing the benefit.

Of course, I’m sure he knows this better than I. After all, he does go to the trouble of stating his qualifications as a former federal prosecutor.

However, I’m open to suggestions or theories.

The article is found here.

And You Thought Average Jury Selection Was Difficult…

As if jury selection isn’t tedious enough, it becomes even more so when a flag officer is being prosecuted. Per the Military Times, issues abound.

Here’s a quick synopsis of various issues at hand along with a bit of commentary.

  • A court-martial panel must consist of members who are senior in rank (or date of rank) to the accused. Except per Rule for Court-Martial (RCM) 912(f)(K) which states that a member of a court-martial panel shall be excused whenever they are “junior to the accused in rank, unless it is established that this could not be avoided.” Here, the Army may run out of general officers who have not already formed an opinion about Sinclair. That leads to the second point which is…
  • Will the court-martial turn to flag officers from other services? It is possible, and the Air Force is the logical choice given proximity and familiarity of the services.
  • Everything these flag officers say is important, and each is a present or potential court-martial convening authority. From looking at the discussion of each in the Military Times, they are publicly disclosing details on their view of crimes, witness credibility, criminal procedure, culpability, sentencing theory, and sexual assault. It will be interesting to see if any of their statements during voir dire (jury questioning and selection) comes back at a later date.
  • UPDATE: The military times notes that 3 generals remain on the panel. As of today, that is no longer true. They were struck by the military judge. (Thanks to Bill C. in his comment at CAAFLog.)

Somebody, Anybody, Teach The POTUS about UCI

Via the New York Times, President Obama still hasn’t learned to be mindful of unlawful command influence and its application to his position as Commander in Chief.

When President Obama proclaimed that those who commit sexual assault in the military should be “prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged,” it had an effect he did not intend: muddying legal cases across the country.

Here, he talks specifically about the outcome of courts-martial and potential punishments. Former Army Judge Advocate General Thomas Romig (Major General, Retired) said it best.

“His remarks were more specific than I’ve ever heard a commander in chief get,” said Thomas J. Romig, a former judge advocate general of the Army and the dean of the Washburn University School of Law in Topeka, Kan. “When the commander in chief says they will be dishonorably discharged, that’s a pretty specific message. Every military defense counsel will make a motion about this.”

What are the possible outcomes?

At Shaw Air Force Base in South Carolina last month, a judge dismissed charges of sexual assault against an Army officer, noting the command influence issue. At Fort Bragg in North Carolina last month, lawyers cited the president’s words in a motion to dismiss the court-martial against Brig. Gen. Jeffrey Sinclair, who is accused of forcing a lower-ranking officer to perform oral sex on him, among other charges.

In Hawaii, a Navy judge ruled last month that two defendants in sexual assault cases, if found guilty, could not be punitively discharged because of Mr. Obama’s remarks. In Texas, a juror was dismissed from a military panel on a sexual assault case after admitting knowledge of the president’s words. In Alexandria, Va., Eric S. Montalvo, a former defense counsel in the Marine Corps who is now in private practice, has cited the president’s words in motions to dismiss two sexual assault cases, one against an Army sergeant and the other against a Navy seaman.

“Because the president is the commander in chief, it’s going to come up in basically every imaginable context in sexual assault cases,” said Eugene R. Fidell, who teaches military justice at Yale Law School.

The Bottom Line on the Zimmerman Trial

Tonight, George Zimmerman was acquitted of all charges related to the death of Trayvon Martin. Here’s all you need to know.

1. A jury that was selected with input from both the defense and the prosecution heard all the evidence that was admitted by each side. They had the best seat in the house, and the evidence was presented to them by both the prosecution and defense. They know the evidence better and viewed it in more detail than CNN, MSNBC, the BBC, PBS, ESPN, Nancy Grace, and anyone else who is employed by a news/broadcast agency. They especially know the evidence better than anyone on Twitter. The jury looked at every witness, observing their demeanor and listening to each word.

2. The jury deliberated for approximately 16 hours. Weighing the evidence and juxtaposing it with current Florida law.

3. They found that the prosecutors did not prove the elements of the alleged crimes beyond a reasonable doubt.

4. Based on this, they found Zimmerman not guilty.

5. Despite what is said on Twitter, the prosecution, state, governor, and the Martin family cannot appeal a not guilty verdict. They cannot appeal it to a state appellate court, state supreme court, federal court, federal appellate court, the United States Supreme Court, Maritime Court, Bankruptcy Court, small-claims court, The People’s Court, Judge Judy, Judge Joe Brown, Judge Roy Bean, Cour Internationale de Justice;, or the Salem Special Court for Witchcraft Appeals. The only thing Twitterers who encourage the Martin family to appeal the case to the US Supreme Court are showing is that they did not pay attention during high school civics class. Use their collective wisdom as a watermark for how woefully sad we are as humans.

6. A young man named Trayvon died. He didn’t need to die. That is both tragic and sad.

Officer AJ Ross = Buford T. Justice

It would be a dream to cross examine Officer AJ Ross, champion of protecting the innocent and our liberties.

Evidently, this occurred in Murfreesboro, TN. If you don’t comply, or if you know your rights, there is a price to pay for buckin’ authoritah. Kudos for the kid for knowing his rights, even at the cost of time, scratches in the clearcoat of his car, a bit of humiliation, and intimidation. Oh, and the wherewithal to push “record” on his electronic video device.

Smile, Officer AJ Ross (and your cronies). You’re on candid camera.

A Crisis? Really? Compared to What?

Prof. Gail Heriot says what a lot of us have been saying for a while. While sexual assault is horrible the military or anywhere else, we should keep it in perspective with the rest of society where young(er) people are gathered and living together. She is a professor at the University of San Diego School of Law. More importantly, she cites authority.

Harassing The Military

There is no sexual assault crisis.
By Gail Heriot

By now, almost everyone knows the lurid truth about the military—or they think they do. Last month, after a 2012 survey showed that sexual assault against servicewomen had risen dramatically in the last fewyears, the media went into overdrive. The Washington Post called it an “epidemic.” The New York Times blamed the rise on “the military’s entrenched culture of sexual violence.”

No wonder Congress has since been feverishly pursuing legislation to deal with this seeming national scandal—from a top-to-bottom overhaul of the military’s criminal justice system proposed by Senator Kirsten Gillibrand (D-NY) to mandatory minimum sentences for sexual assault backed by Rep. Mike Turner (R-Ohio).

There is just one problem: Precious little of this story has any basis in fact. Contrary to what many assume, there is no evidence that the military has a higher rate of sexual assault than, say, colleges and universities. Indeed, what paltry evidence there is suggests the opposite. Congress needs to stop, take a deep breath, and avoid adopting legislative remedies it will regret once the crisis atmosphere dies down.

Any institution home to a disproportionate number of young adults will likely have higher than average rates of what the military delicately calls “unwanted sexual contact.” That doesn’t excuse the behavior—which can range from a provocative pat on the bottom to forcible rape—but it does provide much-needed perspective.

The two most recent studies of campus sexual assault—The Sexual Victimization of College Women (2000) and The Campus Sexual Assault Study (2007)—both show colleges to be worse than the military when their figures are annualized to make them roughly comparable to the military’s. At least one older study, The Scope of Rape: Incidence and Prevalence of Sexual Aggression and Victimization in a National Sample of Higher Education Students (1987), makes the military seem like a Junior League garden party.

To be sure, each study asked different questions and collected responses differently, making precise comparisons difficult. Nevertheless the bottom line is clear: There is no evidence that the military is uniquely dangerous to women. Lawmakers who argue high sexual assault rates can harm the military’s morale and recruitment efforts are right, but their own overwrought reaction to the 2012 survey can also be harmful.

The military has surveyed its active-duty members on sexual assault repeatedly since 1988. Overall these surveys have shown impressive improvement. Sometimes the improvement has been astonishing—like that reported in the 2010 Workplace and Gender Relations Survey of Active Duty Members, which showed a 35 percent drop in the rate of unwanted sexual contact reported by servicewomen sincethe last survey in 2006.

The 2010 survey probably spawned the current controversy. Bear in mind that even expertly crafted surveys sometimes produce inaccurate results. The 2010 results were probably too good to be true. If the 2010 results were off the mark, it was inevitable that the results in 2012 would look bad in comparison—even though the 2012 results were still a 10 percent improvement over the results in 2006.

Critics often assume that the military fails to provide sexual assault training or that it is lax in its prosecution of these crimes relative to civilian jurisdictions. But this is not supported by the evidence.

As for training, 96 percent of women and 97 percent of men reported in the 2012 survey that they had received sexual assault training in the last 12 months. These were slight improvements over 2010 and 2006, but the fact is sexual assault training has long been a way of life in the military.

Prosecution rate comparisons are difficult, since civilian jurisdictions are not required to publish statistics. Even if they were, they would be of little use, since for service members, reporting a sexual assault to military authorities is as much like reporting it to an employer as it is like reporting it to the police. The statistics would not be comparable.

Insofar as there is evidence, however, it suggests that the military is now more aggressive in prosecuting sexual assaults than civilian jurisdictions. For example, when a rape involving military personnel occurs off-post, civilian and military authorities both have jurisdiction. On those occasions in fiscal year 2011 on which the civilian jurisdiction took the lead, prosecution rates were 11 percent. In contrast, the military’s prosecution rate was 55 percent. Even greater gaps were documented for prosecutions of aggravated sexual assault.

Indeed, some charge that in the military’s zeal to placate its critics, it is now going too far. “[T]here’s this myth that the military doesn’t take sexual assault seriously,” said former Army judge advocate Michael Waddington. “But the reality is they’re charging more and more people with bogus cases to show that they do take it seriously.” Similarly Bridget Wilson, a defense attorney specializing in military law, told the U.S. Commission on Civil Rights, “There is an increasing perception that the deck is stacked against someone accused of a sexual assault.”

This is especially so in cases in which two service members have been drinking and engage in seemingly consensual sex. These days, in the military’s view, he’s guilty and she’s an incapacitated victim. Civilian authorities usually shun such cases.

Indeed, it is cases like that that caused a female prosecutor who wished to be anonymous to comment to McClatchy Newspapers in 2011, “There is a pressure to prosecute, prosecute, prosecute. When you get one that’s actually real, there’s a lot of skepticism. You hear it routinely: ‘Is this a rape case or is this a Navy rape case?’ ”

One thing is certain: The military’s top brass is now desperate to convince Congress that it takes sexual assault seriously. On June 4, a supplicating Army chief of staff Gen. Raymond T. Odierno told the Senate Armed Services Committee that “combating sexual assault and sexual harassment within the ranks is our No. 1 priority.”

The military is a large and complex institution with many priorities. But only one can be No. 1. If combating sexual assault and sexual harassment is the military’s No. 1 priority, that means defending the nation from foreign aggression is not. It’s time to sober up.

Gail Heriot is a professor of law at the University of San Diego and a member of the U.S. Commission on Civil Rights.