The Army Lawyer | Issue 3 2021View PDF

null The U.S. Army Consolidated Rehearsing Center

The U.S. Army Consolidated Rehearing Center is located in the Office of the Staff Judge Advocate building at Fort Leavenworth, Kansas. (Photo courtesy of MAJ Mitchell Suliman)

Practice Notes

The U.S. Army Consolidated Rehearing Center


Rehearings, new trials, other trials (per Rule for Courts-Martial 810), and remands often have unique challenges that require particularized experience and expertise. Establishing a single location for the prosecution and defense of these cases enables the Army to maximize opportunities to develop and maintain this critical expertise.1

On 31 July 2020, The Judge Advocate General (TJAG) established the U.S. Army Consolidated Rehearing Center at Fort Leavenworth, Kansas, to process, prosecute, and defend all rehearings, new trials, other trials, and remands. The rehearing center now exists to tackle a unique and complex facet of military justice: Army rehearings. Between fiscal years 2000 and 2019, there were between eight and twenty-nine cases per year remanded to different General Court-Martial Convening Authorities (GCMCAs) by the Army Court of Criminal Appeals (ACCA).2 Historically, surges of remands follow significant ACCA opinions, such as United States v. Fosler 3 and United States v. Hills.4 For example, since the Hills opinion was published in June 2016, appellate courts have overturned convictions in at least fifty-one cases and authorized a rehearing in forty-five of those cases.5 The Rehearing Center is the JAG Corps’s newest creation to further its statutory mandate of administering military justice.6 Located on the Missouri River, right down the road from the U.S. Disciplinary Barracks (USDB) and the Midwest Joint Regional Correctional Facility (JRCF), the Rehearing Center now receives all rehearings, new trials, other trials, and remands—regardless of the alleged offense(s).

TJAG Policy Memorandum 20-02

The Rehearing Center serves to standardize and enhance the processing, prosecution, and defense of rehearings, new trials, and other trials and remands—all while developing subject matter experts in the complex procedures involved in the prosecution and defense of these types of cases.7 Pursuant to TJAG’s policy, the Clerk of Court for ACCA, acting on an order of remand from the appellate court, will refer records of trial to the Commanding General, Combined Arms Center, Fort Leavenworth, Kansas, subject to some exceptions discussed below.8 The Rehearing Center will receive all rehearings, new trials, other trials, and remands, regardless of the alleged offense(s), including both special victims and general crimes cases.9 In addition to rehearings in full and rehearings on sentence, the Rehearing Center may also receive limited proceedings remanded under Article 66(f)(3), Uniform Code of Military Justice.10 These are fact-finding hearings, also known as DuBay hearings, to address a substantial issue determined by ACCA.11

While the policy directs that all remanded records be referred to the Rehearing Center, there are exceptions allowing the case to be sent back to the original convening authority. First, if an appellate authority has only directed a new action by the convening authority without ordering a rehearing, the action will ordinarily go back to the original convening authority.12 Additionally, the Staff Judge Advocate (SJA) of the original convening authority has a right of first refusal and can request that the case be returned to them. In those situations, the Clerk of Court for ACCA may send the case to the original convening authority.13 Last, a rehearing case may be sent to a different installation if there is a compelling interest to do so. Compelling interests include, but are not limited to, the preference of the victim(s) in the case, the presence of members of the original prosecution team at the Office of the Staff Judge Advocate (OSJA) of the original convening authority, or the accused’s assignment to the command or installation of the original convening authority. If there is such a compelling interest, the Clerk of Court for ACCA may refer the record to the original convening authority.14 Barring these exceptions, the Rehearing Center will receive all rehearings, new trials, other trials, and remands.

Who We Are

All Rehearing Center personnel are assigned to the Trial Counsel Assistance Program (TCAP) at U.S. Army Legal Services Agency (USALSA) and attached to the Fort Leavenworth OSJA for the purpose of prosecuting rehearings, new trials, or other trials and representing the government in remanded limited hearings.15 The Rehearing Center is composed of four government positions: Rehearing Center Officer-in-Charge (OIC), Rehearing Center Prosecutor, Rehearing Center Special Victim Noncommissioned Officer (SVNCO), and Special Victim Witness Liaison (SVWL).16 The Rehearing Center OIC, an O-4, is responsible for the supervision of all personnel assigned to the Rehearing Center and serves as the chief litigator of all U.S. Army rehearings, new trials, other trials, and remands.17 The Rehearing Center prosecutor, an O-3, litigates all rehearings and provides sound advice to commanders and the SJA on all rehearing prosecutions. Akin to the traditional Special Victim team structure, the SVNCO provides support and oversight over rehearing logistics and pre-trial coordination, and the SVWL serves as the primary coordinator for victim and witness services.

The consolidation of all rehearings at Fort Leavenworth requires additional support from Special Victims’ Counsel (SVC) and Trial Defense Service (TDS). Presently, SVC support is provided by the Fort Riley, Kansas, OSJA until an SVC authorization is allocated to the Fort Leavenworth OSJA. Although a part of Fort Riley’s OSJA, this SVC conducts duty at Fort Leavenworth and supports rehearings and limited hearings.18 With the consolidation of rehearings at Fort Leavenworth, trial defense counsel are currently detailed from the Fort Leavenworth field office to support rehearing clients. In accordance with the U.S. Army TDS standard operating procedures, this representation is prescribed by the Senior Defense Counsel and Regional Defense Counsel. It is imperative that TDS continues to be appropriately resourced with experienced defense counsel to fully support accused Soldiers of all remanded cases. The centralization of rehearings may require additional resources to ensure accused Soldiers are best represented throughout the rehearing process.

Rehearings represent a complex facet of the military justice system. While many of the procedures are the same as in an original trial, rehearing proceedings require certain modifications to the traditional court-martial procedure.19 Accordingly, the Army’s Chief Trial Judge is the detailing authority for cases remanded to the Consolidated Rehearing Center. Due to the complexity of the proceedings, the detailed judge will normally have significant prior experience.20 While complex in nature, the consolidation of all rehearings provides several benefits for military justice.

The Benefits Outweigh the Challenges

While rehearings may be challenging, there are several benefits to the consolidation of rehearings. The main benefit is that military justice shops will no longer receive remanded cases to try. Ordinarily, by the time a case returns on remand, the original counsel on the case—both government and defense—have completed a permanent change of station. This means new counsel have to get caught up on the case, locate and re-interview the witnesses, review all the evidence, and make a new trial plan. To compound the task, some witnesses may be missing or hard to find. If found, the witnesses’ memories may have significantly deteriorated.21 Traditionally, this was a significant competing interest from the justice shop’s ongoing caseload at particular jurisdictions. Oftentimes, rehearings and remands come with little to no advanced warning. Moreover, the 120-day speedy trial clock is triggered when the Government receives the record of trial and the opinion authorizing or directing the rehearing.22 With a speedy trial clock already ticking away after receipt, the government must review a lengthy record of the previous trial and prepare the case for disposition, prosecution, or otherwise.23 With these cases now being consolidated and sent to the Rehearing Center at Fort Leavenworth, military justice shops and litigators no longer have to handle the significant workload that rehearings bring. The Rehearing Center does its best to track cases and issues that are under appellate review and forecast when cases will be received on remand. Once a case is projected to be remanded or once a rehearing is ordered, the Rehearing Center will reach out to the original justice shop to get the case file and speak to the original litigators. Generally, this will be the only requirement of the justice shop—significantly reducing the burden of handling remanded cases.

In addition to reducing the load on justice shops in the field, centralizing remanded cases provides several other benefits. With all remanded cases consolidated at Fort Leavenworth, there is consistency and standardization in the processing of the cases. There are several tasks associated with remand cases that are not normally part of a traditional court-martial. Oftentimes, the accused is serving confinement; this means that an order to release the accused may be needed. In some cases, the accused is on involuntary excess leave and not located at an Army installation as they await appellate review. Bringing the accused Soldier back on orders, reassigning them to a unit, obtaining housing, and resuming pay and allowances are a few of the potential tasks to accomplish in a rehearing. The general crimes litigator may not be experienced with these tasks and procedures. However, over time, the Rehearing Center will have battle drills, procedures, and systems in place to streamline these necessary functions, allowing for more efficient processing of cases.

The intent behind consolidation is to develop subject matter experts in the complex procedures involved in the prosecution and defense of remanded cases. The appellate courts will remand a case if there is an error in the original trial which prejudices the accused. The Rehearing Center is designed to provide experienced litigators with knowledge and practice in the intricacies of rehearings. This improves the integrity of cases being processed and potentially re-tried.

In theory, the expertise gained over time lowers the risk of cases being returned a second time due to an error on the part of the litigators. Further, it preserves the rights of accused Soldiers under the law. A rehearing results after the appellate court provides relief to the accused by overturning one or more of the original convictions. Thus, accused Soldiers now have an additional chance to be acquitted or not even prosecuted.24 Defense counsel must decide how to best represent a client who may have lost faith in the military justice system after being convicted the first time.25 Consolidation enables defense counsel to be better prepared to handle retrials. In many cases, the accused is in confinement at the USDB or the JRCF still serving their original sentence.

Their client may remain or be placed into pre-trial confinement during the rehearing process. If not placed into pre-trial confinement, the Soldier is re-assigned to the command at Fort Leavenworth. Physical proximity to their client allows defense counsel easier access and availability to meet and prepare for their case. With training and experience, defense counsel can provide better representation at their client’s subsequent action or trial.

In addition to having more experience and knowledge in front of the bar, cases will now likely be tried before more practiced military judges. Prior to the formation of the Rehearing Center, cases were simply sent to the original jurisdiction for retrials. The judge in that jurisdiction would normally be tasked with hearing or deciding the case—regardless of whether the military judge was new to the bench or had any prior experience in rehearings. Under the new system, the Chief Trial Judge receives all cases that are remanded to the Consolidated Rehearing Center and, whenever practicable, details a military judge with considerable judicial experience. This ensures that the accused Soldiers’ rights are best protected, while still receiving the fairest retrial.

Conclusion

For those who want additional courtroom time beyond their general crimes prosecution or trial defense work, an assignment at the Rehearing Center provides another opportunity to try cases and gain experience in complex litigation. As discussed in this article, the Rehearing Center handles all types of cases; this means that litigators who may have handled only general crimes or only special victims cases in their government litigation time would now have the opportunity to try different cases as well. Due to the complexity of the cases, TCAP provides technical oversight, subject matter expertise, and assistance to the Rehearing Center. This is a great opportunity to work closely with and learn from complex litigators and justice leaders at TCAP. Additionally, rehearings provide complex litigation experience for defense counsel. Rehearings are known for their different procedures and complex legal issues. Defense counsel will gain valuable experience dealing with these issues while advocating in the best interest of their clients. Future litigators of the U.S. Army Consolidated Rehearing Center, on both sides of the aisle, will undoubtedly walk away more experienced and refined justice practitioners. TAL


MAJ Suliman is the officer-in-charge of the Consolidated Rehearing Center and special victim prosecutor at Fort Leavenworth, Kansas.

CPT Disotell is the rehearing trial counsel at Fort Leavenworth, Kansas.


Notes

1. Policy Memorandum 20-02, The Judge Advoc. Gen., U.S. Army, subject: Consolidation of Rehearings, New Trials, Other Trials, and Remands (31 July 2020) [hereinafter Policy Memo 20-02].

2. TJAG Decision Brief PPTO, Plans, Rehearing Cell (RHC) (Dec. 11, 2019) (unpublished PowerPoint) (on file with author). U.S. Army Ct. Crim. Appeals, Cases Remanded by ACCA & CAAF (Apr. 22, 2015) (unpublished Excel spreadsheet) (on file with author).

3. United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011) (marking a dramatic shift in pleading the terminal elements of Article 134 offenses. Specifically, the Court of Appeals for the Armed Forces (CAAF) held that Article 134 offenses should explicitly allege the terminal element under Clause 1 or 2, notwithstanding prior case law holding otherwise.).

4. United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016) (holding that the longstanding practice of using charged sexual offenses for propensity purposes to prove other charged sexual offenses was unconstitutional because it ran contrary to the presumption of innocence and the government’s burden of proving each charged offense beyond a reasonable doubt).

5. See Major Colby P. Horowitz, Confessions of a Convicted Sex Offender in Treatment: Should They be Admissible at a Rehearing?, 228 Mil. L. Rev. 44, 44–45 (2020).

6. The Army’s military justice mission is congressionally mandated pursuant to Uniform Code of Military Justice, 10 U.S.C. Chapter 47.

7. See Policy Memo 20-02, supra note 1.

8. Id.

9. See Manual for Courts-Martial, United States, R.C.M. 810(a)(2)(A) discussion (2019) [hereinafter MCM] (“The terms ‘rehearings,’ ‘new trials,’ ‘other trials,’ and ‘remands’ generally have the following meanings: ‘rehearings’ refers to a proceeding ordered by an appellate or reviewing authority on the findings and the sentence or on the sentence only; ‘new trials’ refers to proceedings under Article 73 because of newly discovered evidence or fraud committed on the court; ‘other trials’ refers to a proceeding ordered to consider new charges and specifications when the original proceedings are declared invalid because of a lack of jurisdiction or failure of a charge to state an offense; and ‘remands’ connotes proceedings for determining issues raised on appeal with require additional inquiry.”).

10. UCMJ art. 66(f)(3) (2017).

11. Id. See also Off. of The Judge Advoc. Gen., Rehearing Consolidation Business Rules 4 (31 July 2020) [hereinafter Rehearing Consolidation Business Rules] (“In such cases, the Chiefs of GAD and DAD may desire to have appellate counsel litigate the issues before the hearing court to ensure the hearing fully addresses matters necessary to resolve appellate issues and for the efficient administration of justice. These cases should be coordinated amongst the FLKS SJA, Chief of GAD, FLKS Senior/Regional Defense Counsel, and Chief of DAD to facilitate the appointment of counsel.”).

12. Rehearing Consolidation Business Rules, supra note 11, at 2.

13. Id.

14. Id.

15. Id.

16. Two of the four positions are presently staffed; however, the center should be fully staffed by the end of fiscal year 2022.

17. While the Rehearing Center Officer-in-Charge (OIC) serves as the chief litigator of all rehearings, regardless of the alleged offense or offenses, the OIC also serves as the Special Victim Prosecutor (SVP) for Fort Leavenworth and—per TJAG Policy Memorandum 17-05—performs SVP duties. See Policy Memorandum 17-05, The Judge Advoc. Gen., U.S. Army, subject: Special Victim Prosecution Program (1 Dec. 2017).

18. Rehearing Consolidation Business Rules, supra note 11, at 4.

19. U.S. Dep’t of Army, Pam. 27-9, Military Judges’ Benchbook app. G (29 Feb. 2020) (unofficial update 22 Mar. 21).

20. Colonel Timothy Hayes, Chief Trial Judge, U.S. Army, Gateway Discussion with the Fort Leavenworth, Kansas, Office of the Staff Judge Advocate (Dec. 9, 2020) (notes on file with author).

21. See generally Major Timothy Thomas, Sometimes, They Come Back! How to Navigate the World of Court-Martial Rehearings, Army Law., July 2015, at 34.

22. MCM, supra note 9, R.C.M. 707(b)(3)(D). See also Major Grace M.W. Gallagher, Don’t Panic! Rehearings and Dubays Are Not the End of the World, Army Law., June 2009, at 1.

23. See Horowitz, supra note 5, at 46.

24. Id. at 46 n.16.

25. See Thomas, supra note 21, at 34.

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