October 2, 2013

Welcome to 31(b)log!

by Crim Law Faculty

Welcome to the (new) home of 31(b)log.  All of our posts of the last two years are still here, but we’ve made some changes to the layout and functionality of the blog.  Underneath you’ll find the same great military justice content and academic commentary you’ve come to expect.  Expect some more evolution here, but for now enjoy these big changes:

  • The tabbed pages at the top give you a look at who we are and what we do in the Criminal Law Department.
  • You can see our upcoming courses in the sidebar of the front page and on each of our other tabbed pages.  If you’re interested in what we teach or what those courses involve, you can read about them on the Courses tab.
  • We are also making a move to give our authors — the faculty and adjunct faculty of the department — a little more individual credit for their work; you’ll see authorship credits as we go forward.
  • You can filter our posts by both category (broad) and tag (specific) labels.

Our usage guidelines are after the break…

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July 15, 2014

Professional Identity – Time to (re)define Judge Advocate

by LTC Ben Grimes

At the end of a session of ethics instruction to the Army Trial Judiciary last year, during which I was focused on the impact of (often unconscious) bias on judicial decision-making, I got this question from one of the judges in attendance:

Ok, so what do we do about it?
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July 3, 2014

Police Drones and the Reasonable Expectation of Privacy

by MAJ Shaun Lister

I. Introduction

The prevalent use of unmanned aerial vehicles by the military in the War on Terror Iraq and Afghanistan has raised questions about their possible use by domestic law enforcement.  How their use on American soil impacts the reasonable expectation of privacy enjoyed by members of the American public depends on consistent application of Fourth Amendment jurisprudence, all of which pre-dates the use of unmanned drones.  There has been some criticism that Fourth Amendment jurisprudence has not kept pace with technological advances.[1]  In my opinion, however, so long as the United States Supreme Court does not divert from the reasoning it has set forth in cases such as California v. Cirallo,[2] Dow Chemical v. United States,[3] United States v. Jones,[4] and Kyollo v. United States,[5] the impact will be as significant as Y2K was to the IT world.[6]

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June 30, 2014

The Article 134 Terminal Elements are NOT Interchangeable

by MAJ Allison McFeatters

UPDATE:  When remanding the case to A.C.C.A. for reconsideration, C.A.A.F. gave A.C.C.A. a choice between “dismiss[ing] Specification 3 of Charge IV [the breaking restriction specification] and reassess[ing] the sentence based on the affirmed findings, or [ordering] a rehearing on the affected specification and the sentence.”  On 27 June 2014, A.C.C.A chose the first course of action and dismissed the breaking restriction specification, charged as violating Article 134, clause 1.  After evaluation of the Winckelmann factors (U.S. v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013)), A.C.C.A. affirmed only so much of the sentence that allowed for 420 days confinement and a bad conduct discharge.  The reduction in confinement from the original sentence of 450 days confinement simply removes the maximum 30 days of confinement the appellant faced for breaking restriction and that which the fact finder may have adjudged against appellant when convicted of breaking restriction.  A.C.C.A. provided no further explanation of their views on the Article 134 terminal elements and why they initially agreed that evidence of service discrediting conduct was sufficient to establish an offense charged as prejudicial to good order and discipline.


Following a petition for grant of review, the Court of Appeals for the Armed Forces (C.A.A.F.) reversed a guilty finding in U.S. v. Michael C. Evans, CCA 20130251, because the evidence presented at trial did not match the specification charged.

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May 14, 2014

Reading between the lines

by MAJ Jeremy Stephens

The FY 2013 DOD Sexual Assault Prevention and Response Office Annual Report was released last month and with it some interesting information for practitioners. There were 3,768 unrestricted reports of sexual assaults last year, an increase over the 2,558 unrestricted reports seen in FY 2012 (pages 1-2). Comparatively, the rate of those reports ultimately ending as unfounded allegations stood at 15%, down slightly from the 17% figure last year (pages 88-89). The 495 unfounded allegations last year is not insignificant and follows the same general ratio since a rate of 13% was noted in the FY 2009 SAPRO report (report at 89). The 2013 report defines an unfounded allegation as a “false or baseless allegation” (report at 89), but importantly does not further break down the 495 unfounded allegations in FY 2013.

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April 29, 2014

U.S. v. Janssen – When is a judge NOT a judge?

by MAJ Jeremy Stephens

In U.S. v. Janssen, a unanimous CAAF reminds us that rules matter and some of the structural ones we don’t spend much time on in our courses are the most important, such as Article II’s Appointments Clause.

Judge Stucky’s opinion opens strong and the concise analysis does not disappoint. “[T]he Appointments Clause of Article II is more than a matter of ‘etiquette or protocol’; it is among the significant structural safeguards of the constitutional scheme.” U.S. v. Janssen,   ___ M.J. ___, *2 (C.A.A.F. 2014), quoting, Edmond v. United States, 520 U.S. 651, 659 (1997).

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April 28, 2014

Forty-Second Kenneth J. Hodson Lecture

by MAJ Sarah Sykes

On 24 April 2014, The Judge Advocate General’s Legal Center & School had the honor of hosting Dr. Kathleen Hawk Sawyer as the 42nd Kenneth J. Hodson Lecturer in Criminal Law. Dr. Hawk Sawyer’s impressive career in corrections began when she worked as a psychologist providing counseling to juvenile offenders in Ohio before joining the Bureau of Prisons in 1976. Ascending through the ranks of the correctional system over the course of more than 27 years, in 1992, Dr. Hawk Sawyer was appointed as the director of the Federal Bureau of Prisons, the first female to attain that position.

2014 Hodson Lecture_0011

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April 12, 2014

A Less Invisible War: Sexual Assault Policy Changes In the Military

by MAJ Sarah Sykes

UVA Speech Photo

On 9 April, I had the honor of speaking at the University of Virginia’s Women’s Center about sexual assault in the military. The roundtable discussion focused on the commander’s role in the military justice system along with recent legislative initiatives addressing sexual assault within the ranks. Continue reading

April 12, 2014

DoD Sexual Assault Awareness Month Video

by MAJ Sarah Sykes

“As members of the profession of arms, we must all be deeply invested in making sure every member of the total force feels safe and can focus on the mission.”

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April 12, 2014

US v. Talkington – Sex Offender Registration is Collateral

by MAJ Sarah Sykes

After being convicted of touching the breasts and penetrating the vagina of a woman whom he believed to be asleep, Airman First Class (A1C) Talkington provided an unsworn statement to the panel.  In his statement, A1C Talkington asked the panel to consider the fact that he would be a registered sex offender  “for life” and intimated that he would have difficultly securing employment.  The military judge provided an instruction advising the members that “whether or not the accused will be or should be registered as a sex offender and whether he will be or should be administratively discharged is not a matter before you.” The panel sentenced the accused to 8 months confinement, BCD, TF, and reduction to E-1.  As charged, the crimes collectively carried a maximum punishment of 47 years confinement and a DD.  Defense counsel averred that the instruction was too broad and that collateral matters are to be considered by the panel members if put forth by the accused.  CAAF disagreed. Continue reading

March 30, 2014

United States v. Wicks: Smart Phone is not a Single Container

by LTC Gregory Wormuth

BLUF: CAAF’s rejection of analogy between a cell phone and a single container may have significant ramifications on the application of the Fourth Amendment to electronic storage in the military.

In United States v. Wicks, the accused was a military training instructor (MTI) in charge of training new recruits. He was also dating a fellow MTI, TSgt Roberts. Apparently Roberts suspected the accused of cheating on her with female recruits. To allay or confirm her fears, she went through some of the text messages on the accused’s iPhone. Her fears were well-founded and she observed some “disturbing text messages.” Perhaps because of this infidelity, the accused and Roberts broke up, but Roberts was still angry. So, she stole his cell phone and read more of the texts thereon. She found texts between the accused and two female trainees as well as a sexually explicit video which was sent to one of the trainees. Continue reading


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