IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES Airman First Class (E-3) L.R.M.

, USAF, Appellant v. Crim. App. No. 2013-05 Lieutenant Colonel (O-5) JOSHUA E. KASTENBERG, USAF, Military Judge, Appellee v. Airman First Class (E-3) NICHOLAS E. DANIELS, USAF, Real Party in Interest USCA Dkt. No. 13-5006/AF REPLY OF AMICUS CURIAE OF APPELLATE DEFENSE DIVISION FOR THE NAVY-MARINE CORPS TO PROPOSED BREIF OF AMICUS CURIAE PROTECT OUR DEFENDERS

TO THE JUDGES OF THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES: ARGUMENT Protect our Defenders (P.O.D.) cites nothing that alters the jurisdiction of this Court. P.O.D. emotionally argues to this Court a perceived lack of knowledge of the commonality of victim interpleader in the Federal and State courts by Amici. However, despite its deluge

of case citations, P.O.D. misses the point entirely regarding the narrow statutory jurisdiction of courts-martial. P.O.D.s

fundamental misstep is the reliance almost entirely on examples arising out of federal and state courts of general or

appropriate civil jurisdiction.1

Each case cited at length in

their brief supports the proposition that a crime victim, under a state or federal crime victims rights act, may combine their civil/administrative claim under a criminal docket to seek redress. An alleged victim subject to court-martial may, should

there be an applicable enabling statute, petition a federal court of general jurisdiction for civil/administrative/injunctive relief. An alleged victim in a

court-martial system, however, may not petition this Court or the service courts for direct redress. This is outside the

narrow statutory jurisdiction for courts-martial.2 Furthermore, the sparse military case law cited by P.O.D. does nothing to expand their view. P.O.D. argues cases

involving news agencies access to Article 32 hearings and courts-martial.3 this action. These cases are entirely distinguishable from

The cases relied on by P.O.D. regarding public

access to trials were all rooted upon the accuseds rights under

Protect our Defenders proposed brief of Amicus Curiae (P.O.D. Br.) at iii, Table of Authorities.
1

A view consistent with the recently written holding regarding the narrow statutory jurisdiction of this Court and its subsidiaries found in Ctr. for Constitutional Rights v. United States, 72 M.J. 126, 128 (C.A.A.F. 2013). A case
2 3

P.O.D. Br. at 6, 10, 15.

the 6th Amendment of the Constitution.4

However, this is only

when the accuseds rights aligned with the third parties interests.5 This argument has done nothing to expand the scope of jurisdiction to a non-party. Finally, P.O.D. seeks this Court to enter the legislative arena as it shifts from a legal argument to one of equity surrounding a purported victims view of courts-martial.6 P.O.D. does everything from invoking potential theories of unlawful command influence7 to self-serving descriptions of scandals8 to statistics based on suspect extrapolations from social science surveys9 in an attempt to sway this Court. This

equitable policy argument is misplaced in this Court and should be properly ignored. CONCLUSION P.O.D. cites nothing new to this Court that would allow their view to prevail. Instead, P.O.D. laments about a system

4 5 6 7

Id. Cf. Ctr. for Constitutional Rights v. United States at 129-130. P.O.D. Br. at 21.

Id. at 22 (discussing the President of the United States and Secretary of Defenses zero tolerance policy regarding sexual assault).
8 9

Id. at 23. P.O.D. Br. at 22-24, n. 12-19. 3

of justice they despise.

A system of justice that necessarily

places command decisions regarding prosecutions within units in the hands of commanders. P.O.D. wants a different system.

However, nothing they have provided this Court should impact the analysis in any way.

JASON R. WAREHAM Captain, USMC Appellate Defense Counsel Navy-Marine Corps Appellate Review Activity Appellate Defense Division 1254 Charles Morris Street SE Building 58, Suite 100 Washington Navy Yard, D.C. 20374 (202) 685-7394 Fax (202) 685-7426 CAAF Bar No. 35802 /s/ PAUL C. LEBLANC CAPTAIN, JAGC, USN CAAF Bar No: 28180 Director Appellate Defense Division 1254 Charles Morris Street SE, Suite 100 Washington, D.C. 20374 (202)685-7394

CERTIFICATE OF FILING AND SERVICE I certify that the original and copies of the forgoing were delivered electronically to the Court on 30 May 2013, that a copy was delivered electronically to the U.S. Court of Criminal Appeals, and to the Air Force Appellate Division, NCVLI and P.O.D. as amicus curiae.

JASON R. WAREHAM Captain, USMC Appellate Defense Counsel Navy-Marine Corps Appellate Review Activity Appellate Defense Division 1254 Charles Morris Street SE Building 58, Suite 100 Washington Navy Yard, D.C. 20374 (202) 685-7394 Fax (202) 685-7426 CAAF Bar No: 35802