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MILITARYJUSTICE NAVAL LAW REVIEW ARTICLES STOP THE MADN ESS! IT’S TIME TO SIMP LIF Y COURT-MARTIAL POST-TRIAL P ROCESSING Captain David E. Grogan, JAGC, USN ARTICLE 83 MAROONED: JURISDICTION IN THE AF TERMATH OF UNITED STATES V. KUEMMERLE Lieutenant Commander Brian D. Korn, JAGC, USN Lieutenant David C. Dziengowski, JAGC, USN DOES IT ADD UP? ANALYZING THE US E OF EXTRAPOLATION CALCULATIONS TO DETERMIN E THE ABILITY TO CONSENT IN ALCOHOL- RELATED SEXUAL ASS AULT CAS ES Commander Thomas P. Belsky, JAGC, USN USE OF HEARSAY IN MILITARY COMMISSIONS Lieutenant Commander Arthur L. Gaston III, JAGC, USN DUS TY GALLOWS : THE EXECUTION OF PRIVATE BENNETT AND THE MODERN CAPITAL COURT-MARTIAL Lieutenant Commander Stephen C. 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INDIVIDUAL PURCHASES Individual copies of the Naval Law Review, formerly titled the JAG Journal, may be purchased by contacting the Defense Technical Information Center (DTIC) and the National Technical Information Service (NTIS) for republication and sale. Copies are not available from the Naval Justice School. Commands not already registered with the DTIC may obtain registration forms and information on ordering publications by writing to: Defense Technical Information Center Attention: Code DTIC-FDRA Cameron Station, BLDG 5 Alexandria, VA 22304-6145 COMM (703) 767-8273 DSN 427-8273 1-800-CAL-DTIC (225-3842) Individual purchasers may obtain information on ordering publications by writing to: U.S. Department of Commerce National Technical Information Service 5285 Port Royal RD Springfield, VA 22161 CONTENTS _____________________________ Articles, Essays & Notes _____________________________ STOP THE MADNESS! IT’S TIME TO SIMPLIFY COURT- MARTIAL POST-TRIAL PROCESSING 1 Captain David E. Grogan, JAGC, USN ARTICLE 83 MAROONED: JURISDICTION IN THE AFTERMATH OF UNITED STATES V. KUEMMERLE 38 Lieutenant Commander Brian D. Korn, JAGC, USN Lieutenant David C. Dziengowski, JAGC, USN DOES IT ADD UP? ANALYZING THE USE OF EXTRAPOLATION CALCULATIONS TO DETERMINE THE ABILITY TO CONSENT IN ALCOHOL-RELATED SEXUAL ASSAULT CASES 54 Commander Thomas P. Belsky, JAGC, USN USE OF HEARSAY IN MILITARY COMMISSIONS 76 Lieutenant Commander Arthur L. Gaston III, JAGC, USN DUSTY GALLOWS: THE EXECUTION OF PRIVATE BENNETT AND THE MODERN CAPITAL COURT-MARTIAL 103 Lieutenant Commander Stephen C. Reyes, JAGC, USN Naval Law Review Military Justice Edition LXII STOP THE MADNESS! IT’S TIME TO SIMPLIFY COURT-MARTIAL POST- TRIAL PROCESSING Captain David E. Grogan, JAGC, USN* I. Introduction Post-trial processing of special and general courts-martial must change. The underlying rationale for the current procedures has long since vanished, and the procedures themselves are no longer relevant to the modern court-martial practice. As a result, post-trial processing needlessly absorbs scarce legal resources to comply with outdated and complex procedural requirements, results in avoidable legal errors which often require correction on appeal, and inures no substantive benefit to an accused other than the hope that the Government’s noncompliance with the procedures (which have nothing to do with the guilt or innocence of the convicted service member) will result in reversible error or sentence relief. Although current post-trial procedures will later be discussed in detail, the following synopsis of the procedures at issue will ensure a common understanding among those considering this article’s proposals. After an accused is sentenced by a special or general court-martial, the record of trial is reviewed by the prosecutor (Trial Counsel) and Defense Counsel and authenticated by the Military Judge. The authenticated record of trial is then forwarded to the Convening Authority. When the accused is tried and convicted by a general court-martial or when a special court-martial sentence includes a bad conduct discharge or confinement for one year, the Convening Authority’s lawyer (Staff Judge Advocate) or Legal Officer (non-lawyer) must prepare a recommendation as to what action the Convening Authority should take on the sentence awarded by the court-martial.1 The Staff Judge Advocate or Legal *Captain Grogan is a member of the U.S. Navy's Judge Advocate General's Corps. He currently serves as the Executive Assistant to the Judge Advocate General of the Navy. He earned a bachelor of business administration degree in accounting from the College of William & Mary in 1981, a doctor of jurisprudence degree from the University of Virginia School of Law in 1987, and a master of laws degree in international law from the George Washington University Law School in Washington, D.C., in 1998. Prior military assignments include service as Fleet Judge Advocate for U.S. Fleet Forces Command, Force Judge Advocate for U.S. Naval Forces Central Command/U.S. FIFTH Fleet, Staff Judge Advocate for Naval Network Warfare Command, and Commanding Officer of Region Legal Service Office Southeast. The views expressed herein are solely those of 1 Stop the Madness! It’s Time to Simplify Court-Martial Port-Trial Processing Officer must take into account any matters submitted by the accused, generally in the form of a petition for clemency, in formulating the recommendation to the Convening Authority. After considering the results of trial, the Staff Judge Advocate or Legal Officer’s recommendation, if the case requires one, and any matters submitted by the accused, the Convening Authority may take action on the findings but must take action on the sentence. To take action on the sentence means to approve some or all of the sentence and order it executed (except any punitive discharge or dismissal), to disapprove the sentence in whole or in part, to mitigate the sentence, or to change a punishment to one of a different nature.2 In essence, the reason the Convening Authority is required to take action on the sentence is so the Convening Authority can grant the accused clemency and reduce the sentence when the Convening Authority believes it is appropriate to do so. In reality, though, Convening Authorities rarely grant clemency because either they have entered into a pretrial agreement and given what amounts to clemency in advance in return for the accused’s guilty pleas at trial, or because the accused did not plead guilty, and the Convening Authority believes the accused should live with the sentence ordered by the court-martial after a fair and impartial trial. Why should warfighters care enough to endorse a change to post-trial processing procedures? Because unnecessary post-trial processing procedures waste manpower and money and distract Commanders (who serve as Convening Authorities) from focusing on their primary missions. Commanders certainly are concerned with maintaining good order and discipline because it is the fiber that holds a unit together and allows its members to work as a team to achieve common objectives. However, the reality is current post-trial processing procedures do not translate into improved good order and discipline and essentially provide Commanders with no benefit. The seminal case dealing with post-trial processing procedures is United States v. Moreno.3 In Moreno, the Court of Appeals for the Armed Forces reversed the conviction of Marine Corporal Javier A. Moreno, Jr., for rape because post-trial processing of the case took too long. The court found the author and do not reflect the official positions of the Department of Defense or the Department of the Navy. 1 UCMJ art. 60(d) (2012); MANUAL FOR COURTS-MARTIAL, UNITED STATES, R.C.M. 1106(a) (2012) [hereinafter MCM]. 2 UCMJ art. 60 (2012); MCM, supra note 1, R.C.M. 1107. 3 United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006); see also United States v. Foster, No. 200101955, 2009 CCA LEXIS 62 (N-M. Ct. Crim. App. Feb. 17, 2009) (unpublished) (holding that unreasonable post-trial delay, including 97 days to complete the Staff Judge Advocate’s recommendation and 87 days for the Convening Authority to act, violated due process). 2 Naval Law Review Military Justice Edition LXII that the 490 days that had elapsed between the date the sentence was announced and the date the Convening Authority took action on the case (which involved a 746-page record of trial), coupled with the additional 1,198 days it took for Corporal Moreno’s appeal to be heard, violated due process.4 Concerned with excessive delays in post-trial processing and appellate review, the Court in Moreno established a 120-day deadline from the date the sentence is announced for a Convening Authority to take action on a case. Failure to meet the deadline triggers a presumption of unreasonable delay and creates the possibility of relief for the accused on appeal. Although the Government may overcome the presumption by showing due diligence in taking action on the case, the entire scenario can be avoided by either eliminating the requirement for a Convening Authority to take action or significantly simplifying the post-trial requirement. Instead of considering these approaches, Congress reacted to the Moreno decision and other Navy and Marine Corps cases affected by post-trial processing delays by establishing an independent panel to review the judge advocate requirements of the Department of the Navy. Section 506 of the National Defense Authorization Act for Fiscal Year 20105 directed an independent panel of five private U.S. citizens to review emergent operational law requirements of the Navy and Marine Corps; review the requirements to support the Office of Military Commissions and to support the disability evaluation system for members of the Armed Forces; review the judge advocate requirements of the Department of the Navy for the military justice mission, including the performance of the Navy and Marine Corps in providing legally sufficient post-trial processing of cases in general courts-martial and special courts-martial; and review the role of the Judge Advocate General of the Navy to determine whether additional authority for the Judge Advocate General over manpower policies and assignment of Navy and Marine Judge Advocates is warranted.6 In short, Congress focused on whether there are sufficient Navy and Marine Corps judge advocates to successfully perform existing post-trial processing procedures and not on whether those post-trial processing procedures make sense. Had Congress taken the latter approach and simplified post-trial 4 See Moreno, 63 M.J. at 133, 141, 144. 5 National Defense Authorization Act for Fiscal Year 2010, Pub. L. No. 111-84, § 506, 123 Stat. 2190, 2278-79 (2009). 6 Id. § 506(b)(2). Congress also directed the panel to review directives issued by the Navy and Marine Corps pertaining to jointly shared missions requiring legal support; review career patterns for Marine Judge Advocates; and review, evaluate and assess other matters as the panel considers appropriate. Id. 3