Q&A: Texas gunman's punishment spotlights military justice

Published: Friday, November 10, 2017 @ 1:28 PM
Updated: Friday, November 10, 2017 @ 1:27 PM


            FILE - This undated file photo provided by the Texas Department of Public Safety shows Devin Patrick Kelley, the suspect in the shooting at First Baptist Church in Sutherland Springs, Texas, on Sunday, Nov. 5, 2017. Five years before Kelley opened fire on the Baptist church in Texas, killing more than two dozen people, the former Air Force airman faced a military jury after pleading guilty to choking his then-wife and cracking her son’s skull. His sentence: 12 months confinement and a bad conduct discharge.(Texas Department of Public Safety via AP, File)
FILE - This undated file photo provided by the Texas Department of Public Safety shows Devin Patrick Kelley, the suspect in the shooting at First Baptist Church in Sutherland Springs, Texas, on Sunday, Nov. 5, 2017. Five years before Kelley opened fire on the Baptist church in Texas, killing more than two dozen people, the former Air Force airman faced a military jury after pleading guilty to choking his then-wife and cracking her son’s skull. His sentence: 12 months confinement and a bad conduct discharge.(Texas Department of Public Safety via AP, File)

Five years before Devin Patrick Kelley opened fire on a Baptist church in Texas, killing more than two dozen people, the former Air Force airman faced a military jury after pleading guilty to choking his then-wife and cracking her son's skull. His sentence: 12 months confinement and a bad conduct discharge.

Kelly's light punishment from the panel of officers and enlisted service members wasn't unusual, despite the severity of his crime. Unlike their civilian counterparts, military judges and juries don't use sentencing guidelines. The result is often widely disparate sentences for the same or similar offenses.

Service members who sit on military juries typically lack any legal experience, yet are expected to determine adequate punishments for defendants based on wide parameters set by the judge. They may be told, for example, that their options range from no punishment at all to multiple years of confinement and anything in between.

"They have no idea what they're doing," said retired Col. Don Christensen, who served as the Air Force's chief prosecutor from 2010 to 2014 and also presided over 100 trials as a military judge. "So you have these head-scratchers." Christensen is president of Protect Our Defenders, an advocacy group.

Here are a few questions and answers about key aspects of Kelley's court-martial and the military justice system:

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Q: CAN PRETRIAL DEALS CUT PRISON TIME?

Yes. Christensen said the maximum prison sentence Kelley could have received was 30 months because of a pretrial agreement between him, his attorney and the Air Force general who oversaw his case.

Both the military and civilian court systems make use of plea deals before cases go to trial. Defendants are betting that by pleading guilty, they'll get a lesser sentence than they would from a judge or jury. But military judges are not allowed to review the sentencing portion of a pretrial agreement before issuing their own sentence. And the defendant always gets the lesser punishment of the two.

In civilian courts, by contrast, the judge is privy to any pretrial agreement and has the final say. A judge could decide the agreed-upon sentence is too lenient and decide to impose a tougher one.

The difference between a pretrial agreement sentence and a military judge's ruling can be dramatic. Army Staff Sgt. Casey West was sentenced in May by a judge to 56 years in prison for multiple counts of rape and sexual abuse of a child. But he won't be behind bars for nearly that long, because a pretrial agreement capped his confinement at 15 years.

West will do even less time if he is eventually paroled. In the military justice system, convicted service members can be released from prison after serving one-third of their terms. Parole was eliminated for federal civilian defendants convicted of crimes after 1987.

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Q: DID THE JURY KNOW ABOUT KELLEY'S TROUBLED BACKGROUND?

No. When the military jury at Holloman Air Force Base sentenced Kelley in November 2012, they only knew he'd admitted to assaulting his wife and striking her child in the head.

They weren't aware he'd also hit the child on the body, and on multiple occasions pointed a loaded and unloaded firearm at his wife, according to Kelley's court-martial order. Kelley had pleaded not guilty to these other "specifications" — military parlance for an alleged criminal act — and they were withdrawn after he was arraigned.

The jury also likely didn't know Kelley was caught trying to bring guns onto Holloman Air Force Base in New Mexico when he was stationed there, according to an El Paso, Texas, police report from June 2012. Or that he made death threats against superior officers, which also is mentioned in the police report.

All of this information and much more would have been available to federal civilian judges in the form of presentencing reports that they receive before deciding on a punishment.

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Q: IS THERE MORE TO KNOW ABOUT KELLEY'S COURT-MARTIAL?

Yes. The Air Force has so far released only a handful of pages from Kelley's trial record. The service is planning to release more.

Typically, however, transparency in connection with military trial records is minimal. While all of the services make brief courts-martial results public, documents from the proceedings, such as the charges, courtroom transcripts and pretrial agreements, are available only through the federal open records law, the Freedom of Information Act. That's a potentially time-consuming process and there are no assurances the requested documents will be released.

Conversely, records from most federal court cases are available online through the Public Access to Court Electronic Records system, known as PACER. PACER was established in 1988. Congress last year directed the Pentagon to create a comparable repository by 2020.

"What baffles me is why this is treated like putting a man on the moon," Eugene Fidell, who teaches military justice at Yale Law School and is a practicing attorney, said of the military's failure to keep pace. "It's really one of the great mysteries to me."

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Contact Richard Lardner on Twitter at http://twitter.com/rplardner

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Mueller investigation: Lawyer pleads guilty to lying to investigators in Russia probe

Published: Tuesday, February 20, 2018 @ 3:26 PM
Updated: Tuesday, February 20, 2018 @ 3:26 PM

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An attorney pleaded guilty Tuesday to lying to the FBI in the agency's investigation into Russian meddling in the 2016 presidential election and its possible ties to President Donald Trump's campaign.

The charges against lawyer Alex Van Der Zwaan are the latest in special counsel Robert Mueller's investigation.

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House Oversight Committee launches probe into Rob Porter's employment

Published: Wednesday, February 14, 2018 @ 2:40 PM

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The House Oversight and Government Reform Committee is investigating the White House’s employment of staff secretary Rob Porter in the wake of allegations that he abused his two ex-wives, committee chairman Rep. Trey Gowdy, R-South Carolina, said Wednesday.

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Porter submitted his resignation Feb. 2.

Gowdy told CNN that the committee launched a probe Tuesday night into Porter’s employment and when White House officials knew about the domestic violence allegations levied against him.

Porter has denied any wrongdoing.

"We are directing inquiries to people that we think have access to information we don't have. You can call it official. You can call it unofficial,” Gowdy told CNN. “I'm going to direct questions to the FBI that I expect them to answer.”

Porter resigned Feb. 2 after his ex-wives went public with allegations of domestic abuse and said they spoke with federal authorities about the claims, prompting critics to question why he had remained employed in the Trump administration. The allegations held up a background check needed to grant Porter a security clearance for work in the White House. Officials said he was working on an interim security clearance.

The process to get Porter his clearance was ongoing at the time of his resignation.

“How do you have any job if you have credible allegations of domestic abuse?” Gowdy asked on CNN. “I am biased toward the victim.”

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Porter’s first wife, Colbie Holderness, and his second, Jennifer Willoughby, told the FBI about the alleged domestic violence in January 2017, after they were contacted while Porter was applying for his security clearance, according to The Washington Post.

White House officials defended Porter in the immediate aftermath of the allegations, and President Donald Trump has faced criticism for what critics called his lack of care for the victims and his focus on the fact that Porter has denied the claims.

“I was surprised by (the allegations), but we certainly wish him well, and it’s a tough time for him,” Trump told reporters in Washington on Friday. “He did a very good job when he was in the White House, and we hope he has a wonderful career. … It was very said when we heard about it, and certainly he’s also very sad now. He also, as you probably know, says he’s innocent, and I think you have to remember that.”

U.S. President Donald Trump speaks with White House Secretary Rob Porter (C) and Sen. Mike Lee (R-UT) (R) as they return to the White House December 4, 2017 in Washington, DC. (Photo by Chris Kleponis-Pool/Getty Images)(Pool/Getty Images)

Holderness told The Daily Mail that Porter was verbally abusive throughout their relationship, which started in 2000, but that things escalated after they were wed in June 2003. She said Porter kicked her during their honeymoon and during a 2005 vacation in Italy, punched her in the face.

Willoughby, who married Porter in November 2009 and separated from him in early 2010, told The Daily Mail that Porter was verbally abusive.

Willoughby obtained a protective order against Porter in June 2010 after she said he violated their separation agreement and refused to leave her apartment, according to court records obtained by The Daily Mail. In the complaint, Willoughby said Porter punched in a glass door while she was locked inside the apartment, but left after he heard she was on the phone with police.

She told the Mail that in December 2010, he dragged her out of a shower while she was naked in order to yell at her.

The couple was divorced in 2013.

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Veteran resident dies, receives patriotic farewell from nursing home

Published: Saturday, February 10, 2018 @ 12:20 PM

File image of the American flag.
Christopher Bruno, Freeimages
File image of the American flag.(Christopher Bruno, Freeimages)

A veterans nursing home in South Carolina honored a resident who died this week with a patriotic farewell that has gone viral.

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In a Facebook post, Laura Dorn thanked the Richard M. Campbell Veterans Nursing Home in Anderson for taking such good care of her father, Doug Timmons, who had Alzheimer's disease and was a resident of the facility for the last three years. Dorn wrote that her father died early Thursday morning and the staff took the time to honor him for his service as his body was removed from the facility. In a video that Dorn posted, Timmons' body, draped with an American flag, is wheeled out as staff line up and a musical tribute plays.

In a Facebook review of the nursing home, Dorn thanked the "caring, accommodating and selfless" staff who she said treated her father like family. Dorn wrote, "They treated my Dad with dignity and respect from the first moment there until he drew his last breath, then sent him off with a hero's procession."

The video has received more than 3 million views.

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Trump thanks Putin for expelling U.S. diplomats

Published: Friday, August 11, 2017 @ 4:16 PM

President Donald Trump walks to Marine One before departing from the White House on August 4, 2017 in Washington, DC. President Trump is traveling to Bedminster, N.J. for his summer break. (Photo by Mark Wilson/Getty Images)
Mark Wilson/Getty Images
President Donald Trump walks to Marine One before departing from the White House on August 4, 2017 in Washington, DC. President Trump is traveling to Bedminster, N.J. for his summer break. (Photo by Mark Wilson/Getty Images)(Mark Wilson/Getty Images)

President Donald Trump on Thursday said that he is “very thankful” that Russian President Vladimir Putin decided to expel hundreds of U.S. diplomats, telling reporters in New Jersey that the decision will help the U.S. cut down on salaries.

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“I want to thank him because we’re trying to cut down our payroll, and as far as I’m concerned, I’m very thankful that he let go a large number of people because now we will have a smaller payroll,” Trump said, according to The Washington Post. “There’s no real reason for them to go back. … We’re going to save a lot of money.”

The comments were Trump’s first addressing Putin’s decision last month to expel 755 diplomats and technical personnel from the U.S. Embassy and consulates in Russia, according to The Post.

Trump’s proposed budget for fiscal year 2018 included a 29 percent cut of State Department funding, NPR reported.

But White House Press Secretary Sarah Huckabee Sanders said in an email to The New York Times on Friday that the president was making a joke.

“He was being sarcastic,” she told the newspaper.

Still, some lawmakers questioned Trump’s decision to praise Putin.

“After weeks of silence regarding Vladimir Putin's outrageous expulsion of hundreds of U.S. embassy personnel, President Trump once again let Russia off the hook and instead insulted America’s diplomats,” Rep. Eliot Engel, D-New York, the ranking member on the House Foreign Affairs Committee, said in a statement.

“No doubt, the President's staff will eventually try to clean up after the parade by claiming it was a joke, but there's nothing funny about this,” he said.

According to Politico, “many, if not most, of the positions cut will likely be those of locally hired Russian staffers. The local staff who are let go will likely get severance payments, but cost savings are possible in the long run.”

Unidentified sources told the news site that most of the U.S. diplomats made to leave Russia will be moved to different posts.

Putin’s decision to kick American diplomats out of the country came in retaliation for sanctions placed on Russia by the U.S. Trump signed the bill, which passed with strong bipartisan support and required congressional approval to lift the restrictions, although he criticized it as being “seriously flawed.”

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