U.S. v. Hartman, 69 M.J. 467

First Principles: Constitutional Matters: Generally

1. constitutional rights may apply differently to members of the armed forces than they do to civilians

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. with respect to the requisite inquiry into the providence of a guilty plea for a charge against a servicemember that may implicate both criminal and constitutionally protected conduct, the colloquy between the military judge and an accused must contain an appropriate discussion and acknowledgment on the part of the accused of the critical distinction between permissible and prohibited behavior
2. the fundamental requirement of plea inquiry under Care and RCM 910 involves a dialogue in which the military judge poses questions about the nature of the offense and the accused provides answers that describe his personal understanding of the criminality of his or her conduct; a discussion between the trial counsel and the military judge about legal theory and practice, at which the accused is a mere bystander, provides no substitute for the requisite interchange between the military judge and the accused

Core Criminal Law Subjects: Crimes: Article 125 - Sodomy Pre-2019 offenses

1. the appropriate framework for distinguishing between conduct constitutionally protected and conduct that may be prosecuted criminally under Article 125 requires consideration of three questions set forth in United States v. Marcum, 60 MJ 198 (CAAF 2006): first, was the conduct of a nature to bring it within the liberty identified by the Supreme Court in Lawrence v. Texas, 539 US 558 (2003); second, did the conduct encompass any behavior or factors identified by the Supreme Court as outside the analysis in Lawrence; and third, are there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest
2. appellant’s guilty plea to the offense of consensual sodomy was improvident where the military judge described the offense of sodomy solely in terms of the definition of the offense set forth in the MCM and appellant merely described the nature of the sexual conduct between himself and the other party to the sexual act, but the inquiry failed to reflect consideration of the appropriate framework for distinguishing between conduct constitutionally protected and conduct that may be prosecuted criminally under Article 125 as set forth in United States v. Marcum, 60 MJ 198 (CAAF 2006); although in response to the questions from the military judge, appellant stated that the incident took place on board a military facility, that the other participant in the sexual activity was a servicemember assigned to the same ship as appellant, and that a third servicemember was present and asleep in the room at the time of the charged act of sodomy, the military judge failed to explain to appellant the significance of the questions, nor did the military judge ask appellant whether he understood the relationship of the questions and answers to the distinction between constitutionally protected behavior and criminal conduct; in the absence of a dialogue employing lay terminology to establish an understanding by the accused as to the relationship between the supplemental questions and the issue of criminality, appellant’s plea was not provident

Trial Stages: Merits: Guilty Pleas

1. with respect to the requisite inquiry into the providence of a guilty plea for a charge against a servicemember that may implicate both criminal and constitutionally protected conduct, the colloquy between the military judge and an accused must contain an appropriate discussion and acknowledgment on the part of the accused of the critical distinction between permissible and prohibited behavior
2. the fundamental requirement of plea inquiry under Care and RCM 910 involves a dialogue in which the military judge poses questions about the nature of the offense and the accused provides answers that describe his personal understanding of the criminality of his or her conduct; a discussion between the trial counsel and the military judge about legal theory and practice, at which the accused is a mere bystander, provides no substitute for the requisite interchange between the military judge and the accused
3. appellant’s guilty plea to the offense of consensual sodomy was improvident where the military judge described the offense of sodomy solely in terms of the definition of the offense set forth in the MCM and appellant merely described the nature of the sexual conduct between himself and the other party to the sexual act, but the inquiry failed to reflect consideration of the appropriate framework for distinguishing between conduct constitutionally protected and conduct that may be prosecuted criminally under Article 125 as set forth in United States v. Marcum, 60 MJ 198 (CAAF 2006); although in response to the questions from the military judge, appellant stated that the incident took place on board a military facility, that the other participant in the sexual activity was a servicemember assigned to the same ship as appellant, and that a third servicemember was present and asleep in the room at the time of the charged act of sodomy, the military judge failed to explain to appellant the significance of the questions, nor did the military judge ask appellant whether he understood the relationship of the questions and answers to the distinction between constitutionally protected behavior and criminal conduct; in the absence of a dialogue employing lay terminology to establish an understanding by the accused as to the relationship between the supplemental questions and the issue of criminality, appellant’s plea was not provident