Military.com reports on a rather lugubrious incident at Fort Lee. The Air Force is investigating a photo that appeared online depicting Airmen posing with an open coffin that contains another Airman playing dead with a noose around his neck, the Air Force Times newspaper reported Wednesday.

Fort Bragg Patch reports: The Army’s Criminal Investigation Command removed explosives and military weapons from the Fayetteville soldier’s home [while serving a domestic violence protective order.

The Leaf Chronicle reports, and here: “A Fort Campbell soldier was found guilty of killing his wife and sentenced to 15 years in prison following a four day trial last week.” For the LIO of voluntary manslaughter he was sentenced to 15 years, which is the maximum for that offense.

Appellant alleges, inter alia, that assault with intent to commit rape is not a lesser-included offense of rape under United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010) and that his conviction should be set aside. We agree, and provide relief in our decretal paragraph. Because we decide the case on the basis of this assignment of error, we do not consider appellant’s other allegations.

Also a quick note about “notice.”

The Court of Appeals for the Armed Forces (CAAF) elaborated on this concept in United States v. Miller, 67 M.J. 385, 388 (C.A.A.F. 2009) in stating that an accused should not have to look further than his charge sheet to know what he is expected to defend against. “[T]he principle of fair notice mandates that an accused has a right to know to what offense and under what legal theory he will be convicted and that a lesser included offense meets this notice requirement if it is a subset of the greater offense alleged.” Id. at 389 (quotations and citations omitted).

NMCCA has just reminded us of the current law, unaltered by Miller or Jones in United States v. Fosler, when dealing with Article 134, UCMJ, charging.

The Judge has decisions pending on a suppression motion and a motion to dismiss an attempted rape charge for failure to state an offense.

As FayObserver ‘observes:’

Spc. Aaron M. Pernell, 23, of Tulsa, Okla., is charged by military authorities with attempted rape, two counts of rape, assault, two counts of burglary and on count of housebreaking. He’s also charged with 26 crimes by civilian law enforcement in Cumberland and Hoke counties.

National & International Criminal Jurisdiction Over United Nations Peacekeeping Personnel for Gender-Based Crimes Against Women.

This thesis seeks to determine the most effective jurisdiction for criminal accountability for UN peacekeeping personnel who engage in sexual exploitation and abuse of women, and other conduct amounting to violence against women. As criminalisation is sought as the appropriate method of prevention and punishment of such conduct, it is first examined why criminalisation is necessary. The impact of sexual exploitation and abuse (SEA) on women in the territories in which peace operations are located is detailed as harms in the form of violations of the rights of these women. Alternatives to criminal sanctions are then considered, in particular the actions of the UN towards prevention and prohibition of SEA. While such regulations are necessary, they are ultimately inadequate in preventing and punishing SEA. Included is an assessment of the Draft Convention on Criminal Accountability of UN Officials and Experts on Mission, the adoption of which would support criminalisation. However, the UN itself is unable to exercise criminal jurisdiction, and thus it is essential to examine which jurisdictions would be most effective in undertaking criminal prosecution of peacekeeping personnel. The choice between national jurisdictions and international criminal justice is debated. Which jurisdiction offers a more effectual forum for ensuring accountability? What potential impediments exist and how can such hindrances can be overcome? This thesis argues that gender-based crimes by UN peacekeepers should be criminalised, and that, while the International Criminal Court should not be discounted as a potential forum for prosecutingp erpetrators, domestic prosecutions are far more likely and far more effective.

She discusses MEJA and the UCMJ. BTW she finds the language of Article 133, UCMJ, “highly gendered.”

Here’s an interesting observation:

The Australian law bases the crime of rape on lack of consent; whereas consent is not a factor in the UCMJ provision. This is contrary to developments in international criminal law, where emphasis has been on lack of consent (or coercion) as the primary element of rape. Overall, there is little in common between the Australian and the US provisions on rape. Only force and vaginal penetration remain a common element, and even these are not dealt with in the same manner. The Australian law is much more in line with the direction of international legal definitions of rape, with a broad definition that emphasises lack of consent as the principal element. Progressive movement away from the element of force and towards the element of coercion or lack of consent has been visible in national and international jurisdictions891 for some time now, and it is surprising that the US did not follow this, particularly when its own military courts were advocating the change to the element of lack of consent.

The issues on appeal are: whether the staff judge advocate (SJA) erred by advising the convening authority (CA), pursuant to Rule for Courts-Martial (R.C.M.) 1106, that no new trial was warranted and whether the CA erred by failing to order a new trial despite the SJA’s acknowledgement that the appellant had presented new evidence that fell within the parameters of R.C.M. 1210. Further, the appellant filed a petition for a new trial pursuant to Article 73, UCMJ, 10 U.S.C. § 873.

AFCCA denied relief on the merits of the appeal and denied a new trial. AFCCA reasoned that even if the information was newly discovered (AFCCA was not certain it could not have been obtained during pretrial preparations), the evidence would not,

probably have resulted in “a substantially more favorable result for the accused.”

Apparently

Through the clemency process after trial, the trial defense counsel requested the CA set aside the conviction or grant a new trial. The request was based upon a statement, dated 8 April 2009, provided to the defense by TS, a co-worker of JH and TB. In this unsworn statement, TS indicated that TB had told her that what happened between the appellant and TB was not rape and had been consensual.

A military judge has a sua sponte duty to instruct the members on an affirmative defense if it is reasonably raised by the evidence. United States v. McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002). Failure by the defense counsel to request the instruction does not waive the error. United States v. Brown, 43 M.J. 187, 189 (C.A.A.F. 1995)(citing United States v. Taylor, 26 M.J. 127, 129 (C.M.A. 1988). Failure by the military judge to instruct on an affirmative defense presents a constitutional error which must be tested for prejudice. For such an error to be deemed harmless beyond a reasonable doubt, the Government must prove that the members would have reached the same verdict absent the error. Neder v. United States, 527 U.S. 1, 19 (1999). We agree with the appellant that the affirmative defense of consent was reasonably raised by the appellant’s sworn testimony. As noted above, the appellant posited a scenario in which the purported victim, Cpl B, was an unambiguously willing participant in the sexual contact alleged, ostensibly even the instigator and aggressor. While trial defense counsel failed to request, remind or insist upon an instruction relative to the affirmative defense of consent, it was not his burden to do so. Rather, it was the sua sponte duty of the military judge. United States v. Guitierrez, 64 M.J. 374, 376 (C.A.A.F. 2007)[.]

What should a trial counsel do if the military judge doesn’t say she will instruct on an affirmative defense and the defense counsel doesn’t ask for it, but the trial counsel believes the evidence raises the affirmative defense? Does the trial counsel have an obligation to raise the question at least?

In particular I recommend:

Reporting the Alleged Rape On the night of the alleged rape, after returning to the barracks, AN P did not report the rape or tell anyone what happened. Id. at 548. Seaman (SN) M testified, contrary to AN P’s testimony, that the next day, a smiling AN P pulled him aside, told him “we did it,” and explained that she and the appellant had feelings for each other. Id. at 1146. In the next few days, AN P discovered that rumors were spreading about her being in a hotel room with the appellant. Id. at 552, 570, 592. SN C testified that he had previously counseled AN P when she told him she “liked” the appellant, a married man. Id. at 551, 676, 688. When he confronted her with the new rumors and she explained her version of events, he reported it to the command. Id. at 683. AN P testified that she would not report it because she was afraid she would get into trouble or be kicked out of the Navy for being in a hotel room with a married man. Id. at 552-55, 572, 683. AN P testified that about a week after the alleged rape, upon learning she would not get in trouble as long as she was not “cooperating” with the appellant, she reported the incident, when confronted by a SAVI advocate, a chief, and a member of law enforcement. Id. at 572. The manner in which the rape was reported raises further doubt as to why AN P made the accusation.

Capt Kelly Repair and I had an acquittal on similar facts a few months ago. The difference in our case was that the complaining witness had told her friend she might have sex with the client before they actually went on their date. And afterwords she said she wouldn’t mind doing it again. Oddly enough she didn’t tell NCIS that she and the client had stopped off to get condoms on the way to the hotel, and odder still NCIS didn’t ask apparently. It was right there in her statement to a command investigator given several months before the rape report. Fortunately for the client a smart Staff NCO did a good investigation and had her admissions to the condom purchase. Thanks to a very thorough command investigation done by the senior Staff NCO before NCIS got involved the facts were fully developed, including a second motive to lie. Unlike Ruiz the client does have a conviction for adultery, and some other sexual misconduct.

The senior Staff NCO started out thinking he was investigating a fraternization and adultery case with alcohol involved. As a result of his investigation the complaining witness was informed of a summary court-martial. About that time she attended the new and improved sexual assault training and got her road map on how to complain. Sure enough her summary court-martial went away. This is the same case I posted on earlier about the voir dire. In this same case all the members had been to sexual assault training. Eight had been to the same command training within a few months of trial. Six of those eight came away with this “rule” or thought, “one drink means a woman can’t consent,” or words to that effect. The Service HQ representative testified that’s not what they are supposed to be taught. The military judge characterized the trainor as a “rogue trainer,” who obviously didn’t follow the training guide and denied a group challenge. But the military judge gave a very strong curative instruction to the members about alcohol and consent, which I have to admit must have worked. Of course I don’t think it helped the prosecution that the complaining witness had gotten together with the accused a few nights after the later to be alleged rape at the on-base hotel.

The Navy has just announced a program to cut down on sexual assault offenses. Look for more of these types of cases.

A Fort Bragg soldier accused of rape and break-ins on post, as well as in Cumberland County, is due in court Wednesday for an arraignment hearing. Aaron M. Pernell, 22, of Tulsa, Okla., is charged by the military with two counts of rape, one count of attempted rape, one count of assault consummated by battery, two counts of burglary and one count of housebreaking, according to a release from the 82nd Airborne Division. Pernell also is charged with six additional attacks, three each in Hoke County and Fayetteville, that occurred between October 2008 and August 2009.

Inexperienced operators of a U.S. drone ignored or downplayed signs that Afghan civilians were in a convoy blasted in a deadly American missile attack earlier this year, a military report released Saturday said.

While Washington Post reports that:

In a memo accompanying the military report, McChrystal said four senior officers were reprimanded and two junior officers were admonished in connection with the strike, and he announced bolstered training to prevent similar incidents in the future.

In other news:

Midhusonnews.com reports that the West Point cadet that:

A military judge sentenced him to confinement, dismissal from the Army and forfeiture of all pay and allowances.

United States Military Academy cadet has been convicted of rape in military court. The judge in the court-martial has found Cadet Kyle C. Newman guilty on one charge of rape and one count of indecent conduct. Newman was facing court-martial on two counts of rape and one count of indecent conduct. He had pleaded not guilty on those counts. On Tuesday, he pleaded guilty to three violations of a lawful general order of the Uniform Code of Military Justice, admitting to leaving post and fraternizing with a freshman cadet.

recordonline.com reports that:

Two young women Wednesday detailed in military court their accusations that each was raped by Cadet Kyle C. Newman last year. Newman is facing court-martial on two counts of rape and one count of indecent conduct. He has pleaded not guilty on those counts. On Tuesday, he pleaded guilty to three violations of a lawful general order of the Uniform Code of Military Justice, admitting to leaving post and fraternizing with a freshman cadet. Newman is a member of the Class of 2010, but has not yet graduated the Academy. In opening statements, the defense counsel argued that the sexual encounters were consensual.

My story started last summer when we got back from Iraq. My best friend and I went to a night club and long story short I had sex with a woman. This woman was a female soldier and ended up being late to work the next morning. I was on leave at the time, so I didn’t have to go too work. She accused me of raping her, because she was going to show up to work drunk and late.

. . . the charges are being dropped . . .

It wasn’t over for me yet though. My lawyer called my unit and said he needed to speak with me to tell me all the details. As I walked into his office he was screaming at someone on the phone. He was actually yelling expletives into the phone, I was told to wait outside. As I was ushered into the office he told me to sit down and started reading her statement. In a nutshell it basically said, “I was late and I didn’t think IT was going to be a big deal” (meaning, “it would not be a big deal if I said he raped me so I wouldn’t get in trouble”). Not a fucking big deal? I felt like ripping shit apart, not a fucking big deal? You nearly ruined my entire fucking life. I drink all the fucking time, habitually now, I can’t bring myself to even talk to women, I fear them. I am a complete and total shut-in, I don’t even go out anymore. I just sit in my room drinking and listening to music and playing fucking World of Warcraft. The leadership in my platoon wants me to get out ASAP because I show up in the morning hungover and smelling like an open bar. He went on to explain that he was screaming into the phone because even after that statement CID wanted to pursue charges of aggravated sexual assault.

Before this court, Appellant has assigned the following errors: I. The military judge erred when he denied the defense motion to dismiss Charges I and III for prior jeopardy. II. An unsuspended bad-conduct discharge is an inappropriately severe punishment for the crimes of which Appellant was convicted. III. Appellant’s Fifth and Sixth Amendment rights were denied when he was prohibited from recording the Article 32 investigation, and by the subsequent denial of his motion for a new Article 32 investigation. We exercise our Article 66, UCMJ authority and set aside the findings and sentence. Appellant was charged with Rape, arising from alleged conduct following a party while in the THETIS’s homeport of Key West, Florida. Following a contested trial, members found Appellant not guilty of the most serious charge of Rape, and found him guilty of only the Barbados criminal conduct for which he had already received punishment at Article 15 Captain’s Mast. Considering the facts of this case, we decline to reach the merits of the three Assignments of Error. Instead, we exercise our Article 66, UCMJ authority and set aside the findings in this case. We believe Appellant was appropriately punished for the criminal conduct at Barbados by the CGC THETIS Commanding Officer at Article 15 Captain’s Mast. Preserving convictions of the same (or lesser) offenses by court-martial does not strike us as necessary or attractive.

Marine Capt. Michael A. Webb has died of an apparent suicide in the brig at Quantico while awaiting court martial, a base public affairs officer said Tuesday.

Inisde NoVa reports.

Army investigators have charged a 22-year-old Fort Bragg soldier with two burglaries and a sexual assault on the installation.

Army Times reports.

A senior chief who ran a military working dog kennel in Bahrain and allegedly permitted hazing, hookers and other misconduct will face a retirement board Thursday, Navy officials said. The Navy is forcing Senior Chief Master-at-Arms Michael Toussaint, 38, into retirement. The board convening at Naval Station Norfolk, Va., will determine the rank he’ll retire with and the size of the pension he’ll receive.

Navy Times reports.

The U.S. military is sending a soldier accused of making a threatening rap song to Kuwait for a court-martial.

LA Times reports.

One of U.S. Army Europe’s top enlisted soldiers has been charged with raping a young soldier in his command who was too meek and cowed by his rank to deflect his advances, military prosecutors said at an Article 32 hearing this week.

Stars & Stripes reports.

A soldier from Joint Base Lewis-McChord is accused of holding his 4-year-old daughter’s head under water because she would not recite the alphabet.

Army Times reports.

A U.S. Army lieutenant colonel facing court-martial on a shoplifting charge blames the Army for mistakenly reducing the medicine he takes to curb his urge to steal.

Army Times reports:

A former Fort Riley soldier who served 10 years in prison for a rape he didn’t commit will receive a $7.5 million settlement, if the defendants approve the proposal.

This was a police misconduct coerced confession case apparently.

A little off topic, but generated as a result of the Major Hasan court-martial to be case at Fort Hood. This is not a new topic within the services, but it has achieved a new type of visibility it seems. Marine Corps Times reports:

Fallout from the investigation into the shootings at Fort Hood, Texas, in November could bring an overhaul of the military’s officer evaluation system, a key lawmaker says. Rep. Ike Skelton, D-Mo., the House Armed Services Committee chairman who has spent much of his congressional career studying the training and development of officers, said something must be done to ensure that evaluations of officers contain an honest assessment of their attributes and flaws.