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.

H/T CAAFLog

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.)