Zachary Spilman Attorney at Law 29 North Main Street #97, Sherborn, MA Toll free: 844-SPILMAN

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1 Zachary Spilman Attorney at Law 29 North Main Street #97, Sherborn, MA Toll free: 844-SPILMAN January 30, 2017 Joint Service Committee on Military Justice Docket ID DOD-2016-OS-0113 Department of Defense Office of the Deputy Chief Management Officer Directorate for Oversight and Compliance 4800 Mark Center Drive, Mailbox #24 Alexandria, VA To the Members of the Joint Service Committee on Military Justice: This correspondence is a public comment to the proposed changes to the Manual for Courts- Martial published in the Federal Register on November 29, 2016 (81 Fed. Reg ). The following matters are presented in this correspondence: 1. Disclaimer Public comment to proposed changes to the Manual for Courts-Martial:... 2 a. Do not eliminate appellate counsel s right to review the complete record of trial Suggested additional changes to the Manual for Courts-Martial:... 2 a. Clarify that Government counsel represents either the prosecution or the appellate government division, and not the Government at large b. Increase procedural protections for a person accused of contempt c. Limit the use of personal identifiers in court-martial documents d. Consider rules to address contemporaneous public access to court-martial documents e. Clarify the effect of a staff judge advocate s pretrial advice f. Require production of a privilege log when any entity that is represented by counsel asserts an evidentiary privilege g. Restrict the Government to the privileges contained in Military Rules of Evidence 505, 506, and h. Ensure consistency in prosecutions under Clause 1 and Clause 2 of Article

2 1. Disclaimer. This comment is submitted in my personal capacity. This comment does not speak for, and should not be imputed to, any other individual or any organization, agency, or entity. Nothing in this correspondence necessarily reflects the policy or position of any military service, the Department of Defense, the U.S. Government, or any one or more of my clients. 2. Public comment to proposed changes to the Manual for Courts-Martial: a. Do not eliminate appellate counsel s right to review the complete record of trial. Section 1, Paragraph O of the public notice proposes an amendment to Rule for Courts-Martial (R.C.M.) 1103A that will eliminate the existing right of appellate counsel to review the complete record of trial. This proposed amendment should be rejected, and R.C.M. 1103A should remain unchanged. There is no rational justification to allow appellate military judges to review the complete record of trial but not afford a similar right to appellate counsel (who may and often do outrank the judges themselves). Furthermore, protective orders issued by a court of criminal appeals or by CAAF are more than adequate to protect the privacy interests of victims, witnesses, and others whose private affairs may become part of a record of trial by court-martial. R.C.M. 1103A was established in 2005 and reflects the considered judgment of the President informed by the decisions of the Court of Appeals for the Armed Forces (CAAF) in United States v. Romano, 46 M.J. 269 (C.A.A.F. 1997), and United States v. Rivers, 49 M.J. 434 (C.A.A.F. 1998). There are no new circumstances that warrant upsetting this settled, functional, and practical rule. The proposed amendment should be rejected. 3. Suggested additional changes to the Manual for Courts-Martial: a. Clarify that Government counsel represents either the prosecution or the appellate government division, and not the Government at large. Part II of the Manual for Courts-Martial contains numerous references to the prosecution as a party to a court-martial. See R.C.M. 701(a)(2)(B), 701(a)(3)(A), 701(a)(5)(A), 703(a), 703(c)(1), 901(d)(1), 905(c)(2)(B), 907(b)(3)(B), 910(g)(2), 913(b), 913(c)(1)(A), 916(b)(1), 917(a), 917(d), 921(c)(4), 1001(a)(1), 1001(b), 1001(c)(1), 1001(c)(2)(A), 1001(c)(2)(C), 1001(d), 1001(g), 1001A(e), 1004(b)(1)(B), 1112(c), 1304(b)(2)(E)(ii). See also R.C.M. 704(d) (discussion), 801(e)(4) (discussion), 804(c)(2) (discussion), 806(b)(6) (discussion), 901(d)(3) (discussion), 905(g) (discussion), 907(b)(2)(B) (discussion), 910(a)(1) (discussion), 916(b)(3) (discussion), 918(c) (discussion), 919(b) (discussion), 920(e)(7) (discussion), 1210(f)(3) (discussion), 1301(f) (discussion). This designation conforms to the practice of the civil courts. Page 2 of 8

3 Common practice in courts-martial, however, is for trial counsel to refer to themselves as the Government. Considering the unique nature of a court-martial proceeding, where all participants are Government employees (and, in many cases, all or nearly all are commissioned officers), it is improper for trial counsel to refer to themselves as the Government. They are, and they should refer to themselves as, the prosecution. Furthermore, because the litigation positions of the appellate government divisions are not directed by a central authority, it is improper for counsel assigned to the appellate government divisions to refer to themselves as the Government. They are, and they should refer to themselves, as representatives of their respective appellate government division. Such reference would resolve the incongruity of CAAF s Rule 26(a) which permits the appellate government divisions to file amicus curiae briefs without invitation; if each division represents the Government, then this rule allows the Government to file an amicus curiae brief in support of itself. Accordingly, R.C.M. 103(16)(B) should be amended with a second sentence that states: Such counsel shall be referred to as the prosecution and not the Government. Additionally, R.C.M. 1202(b)(1) should be rewritten to state: (1) Appellate Government counsel. Appellate Government counsel shall represent the appellate government division to which assigned before the Court of Criminal Appeals or the United States Court of Appeals for the Armed Forces when directed to do so by the Judge Advocate General concerned. Appellate Government counsel may represent the United States before the United States Supreme Court when requested to do so by the Attorney General. b. Increase procedural protections for a person accused of contempt. Congress amended Article 48 in the Ike Skelton National Defense Authorization Act for 2011, 124 Stat. 4137, 4218 (2011), expanding the definition of contempt punishable under Article 48 to include: willfully disobey[ing] the lawful writ, process, order, rule, decree, or command of the court-martial. Additional procedural protections for a person accused of contempt should accompany this Congressional expansion of the contempt power. Particularly, the ability of a court-martial to address contempt summarily (pursuant to Rule for Courts-Martial 809(b)) should be limited. A reasonable limitation would permit a court-martial acting summarily to issue no more than a finding of contempt without punishment. Additionally, this author is personally aware of instances where the contempt power was utilized by military judges within the Navy-Marine Corps Trial Judiciary during calendar year 2013 to Page 3 of 8

4 address conduct by judge advocates serving as detailed defense counsel. These instances involved the threat of contempt in response to minor procedural missteps by junior officers with relatively little legal experience. For instance, in one case a company grade military defense counsel was ordered to appear for a contempt hearing because she was less than five minutes late to an Article 39(a) session. In another case, an accused excused the presence at an Article 39(a) session of one of the two company grade military defense counsel detailed to the case, but the absent counsel was ordered to show cause why he should not be held in contempt because he inadvertently failed to file an advance notice of his absence in accordance with a local rule of practice. Such use of the contempt power in response to minor and unintentional transgressions by counsel is improper, borders on tyrannical and abusive, and reveals the need for guidance on the appropriate use of this expanded power. Accordingly, the following new paragraphs (1) and (2) within Rule for Courts-Martial 809(a) are respectfully proposed: (1) Use of the contempt power is limited to willful disobedience of the lawful writ, process, order, rule, decree, or command of the court-martial. Except in extraordinary circumstances, a specific warning shall be given to an alleged offender before any conduct may form the basis of a contempt proceeding under this rule. (2) Personnel of courts-martial, including counsel, shall not be subject to contempt proceedings for any conduct unless the alleged offender is given a warning describing with particularity the allegedly contemptuous conduct, is afforded a reasonable opportunity to comply with the warning, and willfully fails to comply with the warning. c. Limit the use of personal identifiers in court-martial documents. The use of certain personal information, such as social security numbers, the names of minors, dates of birth, financial account numbers, and home addresses is unnecessary to the administration of military justice and risks misuse of this information for improper purposes. Accordingly, the creation of a new rule for courts-martial to restrict the use of this data is advisable. The following text of a proposed rule is respectfully suggested: Rule 110. Use of personal information. All parties shall refrain from including, and shall redact as necessary, the following personal information from the charge sheet, allied papers, pleadings, exhibits, and other documents attached to the record of trial: social security numbers or any portion thereof, the names of minors, dates of birth, financial account numbers, and home addresses. Where omission or redaction would prejudice a Page 4 of 8

5 party, the military judge may order sealed any such matters or order other appropriate relief. d. Consider rules to address contemporaneous public access to court-martial documents. In 5504 of the National Defense Authorization Act for Fiscal Year 2017, Pub. L (2016), Congress established Article 140a that will (when effective) require the Secretary of Defense to prescribe uniform standards and criteria for facilitation of public access to military justice case information. In advance of the effective date of this new statute, the Joint Service Committee on Military Justice should explore the development of uniform rules to enable greater public access to courtmartial documents at all stages (in addition to the above-discussed rule limiting the use of personal identifiers). Were the Joint Service Committee to hold public hearings to address the public s right to contemporaneous access to trial-stage court-martial documents, and to consider techniques to ensure the same, such hearings would likely attract a wide variety of insightful comments. Accordingly, it is respectfully recommended that the Joint Service Committee consider holding such hearings in the near future. e. Clarify the effect of a staff judge advocate s pretrial advice. In the Military Justice Act of 1983, 97 Stat. 1393, 1395 (1983), Congress delegated to a convening authority s staff judge advocate the responsibility to determine whether a specification is warranted by the evidence. This responsibility is contained in Article 34, which states in relevant part: The convening authority may not refer a specification under a charge to a general court-martial for trial unless he has been advised in writing by the staff judge advocate that... (2) the specification is warranted by the evidence... Rule for Courts-Martial 406(b)(2) restates this responsibility, requiring a staff judge advocate to provide a conclusion with respect to whether the allegation of each offense is warranted by the evidence... Additionally, Rule for Courts-Martial 601(d)(2)(B) requires that a convening authority receive this conclusion prior to referring any specification for trial by general courtmartial (unless the accused waives this requirement). However, Rule for Courts-Martial 601(d)(1) applies a disjunctive requirement for a finding of only reasonable grounds prior to referral, stating that if the convening authority finds or is advised by a judge advocate that there are reasonable grounds... (emphasis added), then the convening authority may refer the specification for trial. Page 5 of 8

6 Clarification of the effect of a staff judge advocate s pretrial advice is warranted. When Congress delegated to a staff judge advocate the responsibility to determine whether a specification is warranted, and established that determination as a necessary prerequisite to referral for trial by general court-martial, it intended to relieve commanders of the need to make complex legal judgments. H. Rep , at 14 (1983). Congress thereby provided a staff judge advocate with the authority to prevent trial by general court-martial where the staff judge advocate makes a legal conclusion that a specification is not warranted by the evidence. Moreover, Congress did not further define the term warranted, leaving its application to the sound legal judgment of a staff judge advocate. Rule for Courts-Martial 601(d) unnecessarily confuses this clear delegation of responsibility between a convening authority and a staff judge advocate. Accordingly, the following revised Rule for Courts-Martial 601(d) is respectfully suggested: (d) When charges may be referred. (1) Special or summary courts-martial. The convening authority may refer a specification for trial by special or summary court-martial only where the convening authority finds that there are reasonable grounds to believe than an offense triable by courtmartial has been committed, that the accused committed it, and that the specification alleged an offense. The convening authority may consider information from any source when making these findings. The convening authority is not required to resolve legal issues which may arise at trial, including objections to evidence, prior to referral. (2) General courts-martial. Unless the requirements of this rule are waived by the accused, the convening authority may not refer a specification for trial by general court-martial unless (A) There has been substantial compliance with the requirements of R.C.M. 405; and (B) The staff judge advocate providing the convening authority with pretrial advice under R.C.M. 406 concludes that: the code; (i) The specification alleges an offense under (ii) The specification is warranted by the evidence indicated in the report of any proceeding conducted pursuant to Article 32 (if there is such a report); (iii) A court-martial would have jurisdiction over the accused and the offense. Page 6 of 8

7 f. Require production of a privilege log when any entity that is represented by counsel asserts an evidentiary privilege. Rule for Courts-Martial 701(f) states that: (f) Information not subject to disclosure. Nothing in this rule shall be construed to require the disclosure of information protected from disclosure by the Military Rules of Evidence. Nothing in this rule shall require the disclosure or production of notes, memoranda, or similar working papers prepared by counsel and counsel s assistants and representatives. This rule should be amended to include the following additional sentence: However, any entity represented by counsel and asserting an evidentiary privilege other than the classified information privilege under Military Rule of Evidence 505 shall, at the time of the assertion of the privilege, give written notice to each party of the general description of the privileged matter (sufficient to permit identification for the purpose of litigation) and of the specific legal basis for the assertion of the privilege. The intended purpose of this language is to require creation and production of a privilege log by any entity represented by counsel at a court-martial. The exception for classified information addresses the consequence that the mere fact of the existence of classified information may itself be classified information subject to the privilege. g. Restrict the Government to the privileges contained in Military Rules of Evidence 505, 506, and 507. Because privileges run contrary to a court's truth-seeking function, they are narrowly construed. United States v. Jasper, 72 M.J. 276, 280 (C.A.A.F. 2013) (quoting United States v. Custis, 65 M.J. 366, 369 (C.A.A.F. 2007)). Further, the Government is a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. United States v. Fletcher, 62 M.J. 175, 179 (C.A.A.F. 2005) (quoting Berger v. United States, 295 U.S. 78, 88 (1935)). The privileges for classified information (Military Rule of Evidence 505), government information other than classified information (Military Rule of Evidence 506), and the identity of informants (Military Rule of Evidence 507) are sufficient to protect any official matters deserving of protection from disclosure in a court-martial. Accordingly, these privileges should be the only privileges available to the Government, and the following new Military Rule of Evidence 501(e) is respectfully suggested: (e) Privileges available to the Government. As a party to a proceeding under the Uniform Code of Military Justice, the Page 7 of 8

8 Government may assert only the Classified Information privilege (Military Rule of Evidence 505), the Government Information Other than Classified Information privilege (Military Rule of Evidence 506), and the Identity of Informants privilege (Military Rule of Evidence 507). Nothing in this Rule shall be construed to limit the ability of trial counsel so assert a privilege on behalf of a third-party where authorized. h. Ensure consistency in prosecutions under Clause 1 and Clause 2 of Article 134. The Manual for Courts-Martial, Part IV, 60.c.(2)(a), defines the term to the prejudice of good order and discipline, as follows: To the prejudice of good order and discipline refers only to acts directly prejudicial to good order and discipline and not to acts which are prejudicial only in a remote or indirect sense. Almost any irregular or improper act on the part of a member of the military service could be regarded as prejudicial in some indirect or remote sense; however, this article does not include these distant effects. It is confined to cases in which the prejudice is reasonably direct and palpable. However, similar language is omitted from the definition of the term conduct of a nature to bring discredit upon the armed forces contained in 60.c.(3). This inconsistency is unwarranted and conflicts with jurisprudence interpreting Article 134. See Parker v. Levy, 417 U.S. 733, (1974). Accordingly, 60.c.(3) should be amended to reflect the same limitations contained in 60.c.(2)(a). Thank you for the opportunity to submit these matters. Respectfully, Zachary Spilman Page 8 of 8