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Marine Corps Rocked by Nude Photo Scandal

The Scandal

On March 5th, 2017, Thomas Brennan at Reveal broke a Marine Corps wide scandal. It involved the sharing of sexually-explicit pictures of female Marines. The pictures were shared in a Facebook group called “Marines United.” And in some cases, the full names, ranks, and current duty station of the Marines were posted. The group reportedly had nearly 30,000 followers. Although the story broke in the media on the 5th, it appears that redditor /u/MarinesUnitedthraway posted about the group five months ago on Reddit. CNN reports that the Naval Criminal Investigative Service is currently investigating “full steam ahead.”

Mr. Brennan reports that, in some cases, Marines who did not share pictures made lewd comments about what should be done to the females.

Today, the Commandant released a video addressing online behavior for Marines as well as harassment and abuse.

Potential Consequences

The investigation appears to be in its earliest stages, so it’s difficult to make predictions about what might be forthcoming. But I think it’s safe to say that the Marine Corps is going to take this seriously and look to hold Marines accountable. The question will be, how can they do that?

Obviously a lot will depend on the facts of each individual’s case. And it goes without saying that the Corps won’t simply go after everyone that is a member of the group given it’s size. Expect the Marine Corps to go after users who actively shared pictures or, in some cases, made especially lewd comments.

Legal Actions that the Marine Corps might take

Article 134 of the Uniform Code of Military Justice provides a number of ways for Marine Corps prosecutors to come after the perpetrators here. The law makes any action that is “prejudicial to good order and discipline” or “service discrediting” a crime. Military Justice practitioners refer to it as the “catch all” crime. In this case, the sharing of sexually-explicit photos of fellow Marines could reasonably be argued to be “prejudicial to good order and discipline” in that it is psychologically damaging to the Marines whose photos are shared. That, in turn, reduces the effectiveness of the Marine Corps. Likewise, the action is “service discrediting” in the sense that it brings dishonor to the Corps.

For those Marines who might have made lewd comments, they are not in the clear either. Article 134 also criminalizes “indecent language” when it is prejudicial to good order and discipline or service discrediting.

Yet another way that Marines may get prosecuted is for an orders violation for violating the orders prohibiting sexual harassment.

In addition to the potential criminal consequences listed above, there is always the possibility of nonjudicial punishment or administrative separation from the Marine Corps with an “other than honorable discharge.” Marines that might be involved in this scandal–and there may be a lot judging by the numbers–should be sweating now.

I’ll be tracking this story and will file updates as appropriate.

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Controversial Military Justice Updates

President Obama’s final days in office brought a couple of controversial surprises to the Military Justice Community. 

First, he commuted the sentence of Army Private Chelsea Manning. NYT coverage of the decision is here. PVT Manning, an Army intelligence analyst, was convicted of leaking vast troves of classified military intelligence to Wikileaks in 2010.  

The narrow effect is that PVT Manning served about seven years out of her 35-year sentence.  But the political issues interwoven through the case–including leaks, gender identify in the military, and the President’s role in commuting sentences–make this a much broader debate. Cully Stimson, a former Navy JAG, argues here that the President’s commutation creates a bad precedent and undermines the military. On the other side of the debate, lawfareblog.com provides a thoughtful rejoinder here.

Second, the President commuted Private Dwight Loving’s death penalty to life without parole (LWOP). The case, stemming from a 1988 murder, has been floating around the military justice system and various levels of appeal for nearly 30 years. PVT Loving was one of only five current death row inmates. The Military Times provides coverage here.

This decision was controversial, though to a much lower degree than PVT Manning’s, because it is not clear what set PVT Loving apart from his fellow death-row inmates. Additionally, the underlying charge was brutal. Regardless, this decision is of particular note to our office, since we will be presenting a case study on the Kenneth Parker death-penalty appeal this Thursday. Full details are here

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Court Martial Acquittal and Other Office News

Just like many of you, we’ll be celebrating Thanksgiving with our families. The Law Office will be closed Wednesday to Friday (the 23rd through the 25th), and we’ll be back to normal business hours on Monday the 28th.

Last week was a busy and exciting week for us. Kirk was down in Camp Lejeune, NC to defend a Marine Corporal against a variety of charges including sexual assault, assault, drunk and disorderly, false official statement, and orders violation. The Government dropped all but three charges after motions and the case went to trial on the charges for sexual assault, assault, and drunk and disorderly. After an exhausting two-day trial, the jury acquitted the Corporal of all the charges.

In addition to that, we got the order from the Court of Appeals for the Armed Forces (CAAF) granting an appeal in one of our other cases. Although we don’t expect that the actual oral argument will be held before spring, both Sam and I are looking forward to being back before the CAAF.

Happy Thanksgiving!

-Kirk

DISCLAIMER: THE CASE RESULTS DISCUSSED IN THIS NEWS POST DEPENDED ON A VARIETY OF FACTORS UNIQUE TO EACH CASE, CASE RESULTS DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE UNDERTAKEN BY THE FIRM.

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Colonel Caughey found dead in his Colorado Springs home

Air Force Colonel Eugene Marcus Caughey–whose argument that the miltary’s adultery law discriminates against heterosexuals was discussed briefly here–was found dead in his Colorado home. It appears that he committed suicide. Col Caughey was scheduled to be tried by court-martial for rape and multiple counts of adultery on October 17, 2016.

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Military Appellate Courts address “gross negligence” in the handling of classified materials in the 1995 case of United States v. Roller

In 1991, Marine Corps Sergeant Rickie L. Roller was an intelligence specialist responsible for “code word” and other classified materials that came into the intelligence division at Headquarters, USMC, in Washington D.C.  Like many other intelligence analysts, he worked in a sensitive compartmented intelligence facility (SCIF). SCIF’s themselves are secured buildings in which intelligence analysts can openly store classified material. This is possible because the whole building is secured and all of its occupants have clearances.

Over the course of several months, Sgt Roller accumulated classified materials he worked with in his desk. It appears from the record, that Sergeant Roller did not have a very good relationship with his supervisor, so he asked for a transfer. Around the same time, his supervisor preferred charges against him (that is, charged him some crimes) that were later dismissed. He got his transfer, and on his last day of work he packed up his belongings. Unfortunately, he was in a bit of rush and when he grabbed his personal belongings he also grabbed the classified material that was in his desk.

Several weeks later, he recognized his mistake and discovered the classified material at home. He decided that he would destroy the material when he got to his new duty station, but that was not to be. Instead, an employee from the moving company found the material while he was packing up Sgt Roller’s stuff for his cross-country move. Eventually, Naval Investigative Service was notified and got involved. Sgt Roller was ultimately charged with mishandling classified material in violation of the Espionage Act codified at 18 U.S.C. 793(f).

At trial, he pleaded guilty to an orders violation and a violation of 18 U.S.C. 739(f)(1) as assimilated by Article 134, UCMJ.

On appeal, the issue was whether that statute, which reads the same as it does today, requires that a third-party get a hold of the classified material in order for there to be criminal liability. The U.S. Navy-Marine Corps court of Military Review answered that question in the negative, but of interest is the fact that it called Roller’s inadvertent taking of the classified information “his own gross negligence.” Roller, 37 M.J. at 1096. There was no dispute that his mistake of scooping up the classified material with his personal belongings qualified as gross negligence.

As the Court of Military Appeals (the predecessor to the modern-day Court of Appeals for the Armed Forces) later explained in its decision affirming Roller’s conviction, “[t]he purpose of the federal espionage statute is to protect classified documents from any unauthorized procedures such as ‘removal from its proper place of custody’ . . .”  United States v. Roller, 42 M.J. 264 (C.M.A. 1995). In other words, the crime—as the name suggests—occurs when classified information is “mishandled.”

For this reason, a subjective belief that the lost information will be of actual harm to the United States—and indeed any intent to cause actual harm—is irrelevant to the commission of this crime.

Just ask Sergeant Roller. His mishandling of classified information landed him in the brig for 2 years.

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Air Force Colonel argues that military adultery law discriminates against heterosexuals

Here is a link to an interesting case that is developing out of Schriever Air Force Base. Air Force Colonel Eugene Marcus Caughey has been charged with a laundry list of charges that includes rape, conduct unbecoming, and adultery. Yes, adultery.

Unlike most civilian jurisdictions which–if they even have one–would have to dust off their adultery statute before they charged someone with it, adultery prosecutions are alive and well in the military. Typically, it’s used as an add-on charge to an allegation of rape and it provides an “alternate theory of liability.” So if a married service member defends against a rape charge by saying that the sex was consensual, they still get in trouble for cheating on their spouse.

Col Caughey has a raised a new, novel defense to his adultery charges. It is relatively simple. First, the military now recognizes same sex marriage. Second, adultery under the UCMJ requires sexual intercourse–defined as sex between a man and a woman. Accordingly, his prosecution violates principles of equal protection because homosexual married service members are not subject to the same laws as heterosexual service members.

It’s a good try, and it’s also the kind of creative argument that deserves recognition. By raising this issue, the defense team is forcing the judge to make a difficult call that could threaten to overturn significant portions of the proceedings on appeal. Because of this, the prosecution team should be more inclined to enter into a more favorable plea agreement. It’s excellent work regardless of the outcome.

Still, I think that the argument is destined to fail. (Note:the article suggests that the Colonel has asserted that this is a violation of his rights under the Fourteenth Amendment’s Equal Protection clause which applies to state not federal action. That is clearly a losing argument as the court-martial is federal not state action. I’m just going to assume that Col Caughey’s lawyers properly raised this as a violation of the equal protection component of the Fifth Amendment’s Due Process clause.)

First, sexual intercourse (i.e., heterosexual sex) outside of marriage is prohibited for both hetero and homosexual service members. A married male homosexual service member who has sex with a woman could be charged with adultery just like a heterosexual service member. The difference, of course, is that the homosexual service member doesn’t care. But that doesn’t mean that the possibility is any less real. Moreover, and as the prosecution in Caughey’s case argued, same-sex conduct outside of a homosexual marriage can be addressed using a novel specification of Article 134; which is, incidentally, is the same Article under which adultery is charged.

Second, the Supreme Court still hasn’t said that sexual orientation is a suspect class. (Which was actually one of the things I found disappointing about Obergefell v. Hodges.)  Accordingly, there doesn’t appear to be any kind of barrier to making “heterosexual” only laws.

Nonetheless, it’s a great case and excellent work by the defense. The issue is preserved, and I predict we’ll see it go all the way to the Court of Appeals for the Armed Forces if Col Caughey is convicted.

 

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The Investigative “Interview”

Even though it might feel like it, criminal charges don’t come out of nowhere. Investigations start when there is a report of a crime from the victim. In the military, this report is often made to the victim’s chain of command or the service’s criminal investigative division (CID). It might, however, be made to civilian authorities who will pass the information on to the service CID. It’s important to note that the report of the crime could come well after the incident.

The service will begin an investigation in response to the report. The target of the investigation—the alleged perpetrator—typically will not know when this happens. The investigator will then gather up as much information about the crime as they can. This includes physical evidence and witness statements.

At this point, the suspect may start hear about the investigation as the investigator talks to the people he or she knows. Regardless, the ultimate goal of the initial investigation will be to get enough evidence to confront the alleged perpetrator at an “interview.” I put interview in quotes because it won’t really be really an interview–it will be an interrogation. The goal of the interrogation will be to get the suspect to confess.

If you are under investigation, then it’s very important you understand this. The investigator’s sole purpose when they “interview” you will be to get you to confess. They are not there to “hear your side of the story” and they are not unbiased. In order to get this confession they can and will lie to you. They might, for example, say that a witness videotaped you leaving the scene of the crime even though it is not true or they might say they have DNA evidence when they don’t. Unfortunately, these types of tactics are permitted.

Fortunately, the suspect has unequivocal rights under the Constitution: the right to remain silent and the right to an attorney. No doubt, you’ve heard of these rights. Exercise them.

If you are confronted by law enforcement you should clearly tell them: “I do not wish to make a statement, I want to talk to an attorney, and I want this interview to end.”

Many crimes cannot be proven or become very difficult to prove without a confession. Unfortunately, most defendants confess. But even if you’re innocent, talking in an interview can still cause problems. If law enforcement doesn’t believe you, you’ll still get charged with the crime and you’ll get an additional charge for making a “false official statement.”

Unfortunately, military defendants are not assigned military counsel until they are charged with an actual crime. This means that they often do make a confession. If you are in the military and under investigation or hear that you are under investigation, you should not make any statements and consider talking to an experienced attorney.

-Kirk

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Four Facts that May Help You Understand Your Military Appeal

If you were tried and convicted by a court-martial then there’s a good chance you’re wondering what happens next. Since you’re reading this, you are most likely out of the brig. The next question on your mind is probably: what about my appeal?

First off, it’s incredibly likely that you get one. Military criminal cases are sent for an automatic appeal if the sentence imposed included a punitive discharge (such as a dismissal for officers, a dishonorable discharge, or a bad conduct discharge) or confinement in excess of one year. And it’s just an unfortunate fact that virtually every conviction by a military court-martial includes a punitive discharge.

If your case qualifies for an automatic appeal the legal office that services your command will create a “verbatim” record of trial. That’s just a word-for-word record of everything that was said at trial along with all the motions and exhibits that were used. As you can imagine, this process takes some time, but it’s generally supposed to take around 120 days for the record to get processed and for the authority that convened your court-martial to take action on your case. After that, it’s supposed to get to the reviewing court and be “docketed” by the court within another thirty days. (“Docketed” just means that the court puts your case on the list of cases to be heard.)

At this point, you’ll be assigned a military attorney to handle your appeal. Most likely, they’ll call you at whatever phone number you left with your appellate leave activity. During this initial phone call, they may or may not have fully read the record of trial in your case. Some attorneys like to call the client before they know anything about the case and others like to read everything they can about the case before making first contact. One approach isn’t necessarily better than the other. You should, however, take this opportunity to get to know your assigned lawyer. You may want to ask them whether they’ve handled a case like yours before and how many appeals they’ve done. Trial work provides a good background for appellate work but ideally your attorney will have done both. Also ask yourself whether you feel comfortable with this lawyer. Do they seem sincere in representing your best interests? You only get one appeal so you want to make it count. That brings me to my first fact.

  1. You’re behind the eight ball here.

At trial, you were presumed innocent; on appeal not so much. The general presumption during an appeal is that the trial was performed correctly. The burden is often on you (or really your lawyer) to demonstrate that that there was not just something legally wrong with your trial but that the error affected the outcome of your trial as well. If it sounds like this is a difficult standard to beat, that’s because it is. Nonetheless, cases are overturned on appeal fairly regularly.

In a trial, the focus is on whether the defendant did the crime he was charged with. In an appeal, the focus is on whether the trial the defendant got was fair. Because of this, the focus of any appellate attack in a case should be the military judge. Think of the military judge like the referee in a football game. A ref makes many calls during a game and a bad call can swing the game for one side or the other. So if you were trying to determine whether the outcome of a particular game was fair you might start by looking at the calls the refs made. In the same way, if you’re trying to prove that a trial was or wasn’t fair, you might start by looking at what the military judge did. The military judge makes numerous rulings that can sway a trial for the government. When that happens, it’s called prejudicial error. (That is, the error “prejudiced” or harmed you.) And because military judges necessarily have to make many more rulings (or calls) during a contested trial than they do during a guilty plea, verdicts in contested trials are more likely to get overturned than verdicts in guilty pleas. Having said that, though.

  1. Just because you pleaded guilty doesn’t mean that there’s nothing that can be done.

It’s true that a guilty plea waives most errors and motions. This is called the “guilty-plea waiver” doctrine and it exists for a very good reason. In a military trial, the judge, prosecutor, and defense counsel all take great pains to ensure that a defendant understands what it means to plead guilty. If you pleaded guilty, you know what I mean. Your lawyer had to talk to you about all the rights you were waiving during your guilty plea and the judge had to go over them again on the record. Despite these safeguards, guilty pleas still can get overturned.

It typically happens when the defendant says something that is inconsistent with pleading guilty and the judge doesn’t take the time to investigate the statement on the record. For example, if the defendant in an unauthorized absence case says he left because he had to go and save his dying mother and the military judge does not examine any possible defenses that this statement raises, then the guilty plea could potentially get overturned on appeal. Although this is generally rare, it does happen.

  1. Your trial attorney limited the potential universe of your appeal.

This is a simple but important point that underscores the importance of having experienced counsel on your side during trial. As I told you before, the appeal is an inquiry into whether or not your trial was fair. In that context, it is limited to a review of what actually happened at trial. Because of this, there is only a limited ability to attack the things that your lawyer didn’t do. Does this mean that your lawyer messed up if he didn’t do “X” (where X is something you suggested)? No, probably not. But it does mean that the actions of your attorney affect your available options on appeal. As a result, it’s important that you have a trial attorney who understands not just what’s going on in the moment of trial but how it will look later if the case must be appealed. They must understand and use the proper process for preserving issues on appeal. My final tip is a practical one.

  1. You are entitled to many of the benefits you had while on active duty during your appeal.

Until your conviction is final, you are on appellate leave. As such, you have access to many of the benefits that you had while on active duty. All you need to do is talk to your appellate leave activity and ask them how you can get an ID card while you are on Appellate leave. With that, you can shop at the commissary and the exchange and use most on-base facilities. In addition, you may still be eligible to use your GI Bill benefits if you had at least one honorable discharge. Since military appeals can often take up to or more than a year, it may well be worth your time to take some classes using the benefits you earned.

-Kirk

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Support Your Local Veterans and the American Legion

The Old Town Alexandria American Legion Post (Post 24) is hosting a D-Day Anniversary cookout and fundraiser on June 7. Find more information in the flyer above or purchase tickets online here

AL Fundraiser

 

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Military-Spouse Attorneys Gain Opportunity for Provisional Admission in Virginia

As a belated update to this post, the Supreme Court of Virginia recently adopted Rule 1A:8, which provides provisional admission to military-spouse attorneys who meet specified criteria. 

The Rule is designed to ease the transition for attorneys who move to Virginia due to their spouse’s active-duty military orders.  While Virginia often proves reluctant to allow attorneys to waive into the Commonwealth, this is a welcome rule that is targeted to attorneys that are admitted to another state bar but may not live in Virginia long enough to justify taking the Virginia bar otherwise.

Provisional admission is not automatic, however. The Rule requires attorneys seeking provisional admission to satisfy numerous requirements, which can be found here 

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