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

Trump delays lifting ban on import of elephant trophies from Africa

Published: Friday, November 17, 2017 @ 8:37 PM
Updated: Friday, November 17, 2017 @ 8:37 PM



Cameron Spencer/Getty Images
(Cameron Spencer/Getty Images)

Update (Friday, November 17)

President Donald Trump said in a tweet Friday he’s delaying a new policy allowing the body parts of African elephants shot for sport to be imported until he can review “all conservation facts.”

The U.S. Fish and Wildlife Service said Thursday that it will allow the importation of body parts from African elephants shot for sport. The agency said encouraging wealthy big-game hunters to kill the threatened species would help raise money for conservation programs.

Animal rights advocates and environmental groups criticized the decision. On Friday, the Republican chairman of the House Foreign Affairs Committee urged the administration to reverse the policy, calling it the “wrong move at the wrong time.”

Trump said that the policy had been “under study for years.” He says he will review the issue with Interior Secretary Ryan Zinke.

Earlier

The Trump administration plans to lift a ban on Friday that barred big game hunters from bringing trophies from elephants killed in a pair of African nations to America, according to multiple reports.

>> Read more trending news

A spokesperson for the U.S. Fish and Wildlife Service told ABC News in a statement Wednesday that the decision was made after officials in Zimbabwe and Zambia provided them with information to support a reversal of the ban.

"Legal, well-regulated sport hunting as part of a sound management program can benefit the conservation of certain species by providing incentives to local communities to conserve the species and by putting much-needed revenue back into conservation," the spokesperson told ABC News.

The decision will overturn a 2014 ban implemented by President Barack Obama’s administration in response to falling elephant populations. 

African elephants are listed as threatened under the Endangered Species Act. A provision in the act, however, allows for the government to give permits that let people import trophies from such animals if evidence shows that hunting them helps conservation efforts, according to NBC News.

The rule reversal will apply to elephants hunted in Zimbabwe from Jan. 21, 2016, to Dec. 31, 2018, the news station reported. It will also apply to elephants killed in Zambia in 2016, 2017 and 2018 and “applications that meet all other applicable permitting requirements,” a Fish and Wildlife spokesperson told NBC News.

According to the 2016 Great Elephant Census, Savanna elephant populations fell by 30 percent between 2007 and 2014. About 352,000 elephants were spotted during the survey, 82,300 in Zimbabwe and 21,700 in Zambia.

Both countries had areas that saw substantial declines in elephant populations along the Zambezi river in Zambia and in Zimbabwe’s Sebungwe region, according to the census.

The Associated Press contributed to this report.

Sen. Al Franken accused of kissing, groping news anchor without consent

Published: Thursday, November 16, 2017 @ 11:39 AM
Updated: Thursday, November 16, 2017 @ 2:38 PM

Al Franken Accused Of Groping A Woman In 2006

Update 2:37 p.m. Nov. 16: Sen. Al Franken, D-Minnesota, on Thursday called for an ethics investigation of himself after a Los Angeles news anchor came forward with allegations that he kissed her forcibly and groped her as she slept during a USO tour in 2006.

Leeann Tweeden on Thursday shared an image taken on the trip back to the U.S. at the end of the tour. Franken can be seen smiling up at the camera as his hands hover over her chest.

"I don't know what was in my head when I took that picture, and it doesn't matter," Franken said in a statement released Thursday. "There's no excuse. I look at it now and I feel disgusted with myself. It isn't funny. It's completely inappropriate. It's obvious how Leeann would feel violated by that picture."

He said that he would “gladly cooperate” with an ethics investigation into the incident.

"The truth is, what people think of me in light of this is far less important than what people think of women who continue to come forward to tell their stories," he said. "They deserve to be heard, and believed. And they deserve to know that I am their ally and supporter. I have let them down and am committed to making it up to them.”

Update 11:58 a.m. Nov. 16: Senate Majority Leader Mitch McConnell has called for an Ethics Committee investigation after a Los Angeles news anchor accused Sen. Al Franken of kissing and groping her without her consent in 2006.

“As with all credible allegations of sexual harassment or assault, I believe the Ethics Committee should review the matter. I hope the Democratic Leader will join me on this,” McConnell said, according to Politico. “Regardless of party, harassment and assault are completely unacceptable – in the workplace or anywhere else.”

Leeann Tweeden wrote in a blog post for KABC that Franken “forcibly kissed” her and groped her as she slept during a USO tour in December 2006. Franken was an Air America radio host at the time. He was voted into office in 2008.

Franken apologized to Tweeden in a statement Thursday.

Original report: A Los Angeles news anchor and sports broadcaster on Thursday accused Sen. Al Franken, D-Minnesota, of “forcibly kissing” her and groping her as she was asleep during a USO tour in 2006.

>> Read more trending news

In a blog post for KABC, Leeann Tweeden wrote that Franken, who was a radio host for Air America at the time, forced himself on her as they were practicing a skit he wrote for the tour.

She said that, as the show’s emcee, she hadn’t expected to do more than introduce the acts, “but Franken said he had written a part for me that he thought would be funny, and I agreed to play along.”

In this image provided by the U.S. Army, sportscaster Leeann Tweeden and then-comedian Al Franken meet and greet military members during an autograph signing session of the USO Sergeant Major of the Army's 2006 Hope and Freedom Tour in Camp Arifjan, Kuwait, on Dec. 14, 2006. Sen. Al Franken, D-Minn., apologized Nov. 16, 2017, after Tweeden accused him of forcibly kissing her during the 2006 USO tour. Colleagues, including fellow Democrats, urged a Senate ethics investigation. Tweeden also accused Franken of posing for a photo with his hands on her breasts as she slept, while both were performing for military personnel two years before Franken was elected to the Senate. (Sgt. Thomas Day/U.S. Army 40th via AP)(Sgt. Thomas Day/AP)

“When I saw the script, Franken had written a moment when his character comes at me for a ‘kiss,’” Tweeden wrote. “I suspected what he was after, but I figured I could turn my head at the last minute, or put my hand over his mouth, to get more laughs from the crowd.”

She said he badgered her to practice the kiss scene, and that she eventually agreed, despite her discomfort.

“We did the line leading up to the kiss and then he came at me, put his hand on the back of my head, mashed his lips against mine and aggressively stuck his tongue in my mouth,” she wrote. “I immediately pushed him away with both of my hands against his chest and told him if he ever did that to me again I wouldn’t be so nice about it the next time.”

She said that after the incident, she made sure not to be alone with Franken again.

“I felt disgusted and violated,” she wrote. “No one saw what happened backstage. I didn’t tell the sergeant major of the Army, who was the sponsor of the tour. I didn’t tell our USO rep what happened.”

She said she focused on entertaining the troops and didn’t speak up because she “didn’t want to cause trouble.”

“We were in the middle of a war zone, it was the first show of our holiday tour, I was a professional and I could take care of myself,” she wrote. “I told a few of the others on the tour what Franken had done, and they knew how I felt about it.”

She said that it wasn’t until she was looking through a CD of photos from the tour that she learned that Franken had groped her while she was asleep. She shared a photo of the incident, which showed her sleeping in a flak vest and Kevlar helmet as Franken’s hands hovered over her chest.

“I couldn’t believe it. He groped me, without my consent, while I was asleep,” she wrote. “I felt violated all over again. Embarrassed. Belittled. Humiliated. How dare anyone grab my breasts like this and think it’s funny?”

Franken apologized for the incident in a statement Thursday.

“I certainly don’t remember the rehearsal for the skit in the same way, but I send my sincerest apologies to Leeann,” he said, according to The Washington Post. “As to the photo, it was clearly intended to be funny, but wasn’t. I shouldn’t have done it.”

Tweeden said she decided to come forward because “there may be others.”

“I want the days of silence to be over forever,” she wrote. “I want them, and all the other victims of sexual assault, to be able to speak out immediately, and not keep their stories –  and their anger – locked up inside for years, or decades.”

6 Democrats file articles of impeachment against Trump

Published: Wednesday, November 15, 2017 @ 5:20 PM

Six House Democrats File To Impeach President Trump

Six House Democrats filed articles of impeachment against President Donald Trump on Wednesday, accusing the president of obstructing justice and undermining the freedom of the press in a likely ill-fated push by lawmakers to oust the president.

>> Read more trending news

"We have taken this action because of great concerns for the country and our Constitution and our national security and our democracy," Rep. Steve Cohen, D-Tennessee, said Wednesday at a news conference.

Cohen sponsored the resolution and was joined by five of his colleagues in the House of Representatives: Rep. Luis Gutierrez, D-Illinois; Rep. Al Green, D-Texas; Rep. Marcia Fudge, D-Ohio; Rep. Adriano Espaillat, D-New York; and Rep. John Yarmuth, D-Kentucky.

Announcing Introduction of Articles of Impeachment against Donald Trump

Posted by Congressman Steve Cohen on Wednesday, November 15, 2017

The group filed five articles of impeachment against the president, claiming, among other things, that the president obstructed justice in connection with the FBI investigation into Russian meddling in the 2016 election and connections to Trump presidential campaign officials; and that he has undermined the federal judiciary and the freedom of the press.

>> Related: Larry Flynt offering up to $10M for information leading to Trump's impeachment

“The time has come to make clear to the American people and to this president that his train of injuries to our Constitution must be brought to an end through impeachment,” Cohen said.

In the resolution, lawmakers accused Trump of obstructing justice with his firing in May of FBI Director James Comey. In congressional testimony, Comey said he felt the president tried to get him to drop an investigation into former National Security Adviser Michael Flynn, who was forced to resign less than a month into his tenure after it was revealed that he lied to Vice President Mike Pence about his contact with Russian officials.

>> Related: Read James Comey’s complete testimony before the Senate committee 

In response to the resolution, a Republican House Judiciary Committee aide told Politico that, “It’s the policy of the committee to consider impeachment articles if and when the constitutional criteria for impeachment exist.”

Democrats also expressed skepticism over the future success of the resolution.

 >> Related: Impeach Trump, says billboard near Mar-a-Lago

House Minority Whip Steny Hoyer, D-Maryland, said that many Democrats believe that Trump should be impeached, but “we have just made the judgment that the facts aren’t there to pursue that,” Politico reported.

The Associated Press noted that the measure was likely to fail in the Republican-led House.

 >> Related: Tennessee congressman to file articles of impeachment

“Indeed, the large majority of Democrats seem intent on having nothing to do with the effort either as lawmakers await the results of special counsel Robert Mueller's investigation into ties between the Trump campaign and Russia,” the wire service reported. “Democratic leaders have argued that the impeachment campaign riles up Trump's GOP base, a critical bloc in next year's midterm elections.”

Read the resolution:

Articles of Impeachment filed against Donald Trump by National Content Desk on Scribd

Trump criticized after apparently tweeting condolences for wrong mass shooting

Published: Wednesday, November 15, 2017 @ 5:39 PM

US President Donald Trump speaks about his 12-day trip to Asia, fair trade, and the economy, at the White House on November 15, 2017 in Washington, DC.  (Photo by Mark Wilson/Getty Images)
Mark Wilson/Getty Images
US President Donald Trump speaks about his 12-day trip to Asia, fair trade, and the economy, at the White House on November 15, 2017 in Washington, DC. (Photo by Mark Wilson/Getty Images)(Mark Wilson/Getty Images)

President Donald Trump faced criticism after he appeared to have copied a tweet shared after a mass shooting earlier this month at a Texas church in the wake of an attack Tuesday that left five people dead and 10 injured in Northern California.

>> Read more trending news

“May God be with the people of Sutherland Springs, Texas,” Trump tweeted Tuesday evening, according to Newsweek. “The FBI and Law Enforcement has arrived.”

The tweet came nearly 10 days after authorities said Devin Patrick Kelley, 26, opened fire on people gathered for Sunday service at First Baptist Church in Sutherland Springs, killing 26 people and wounding 20 others.

It came on the same day that a man killed five people and injured 10 others in attacks in Tehama County, California.

>> Related: 6 dead, including suspected gunman, in shooting at California home, elementary school

After the attack in Texas, Trump tweeted a nearly identical message to the one shared Tuesday, writing, “May God be w/ the people of Sutherland Springs, Texas. The FBI & law enforcement are on the scene. I am monitoring the situation from Japan.”

Twitter users accused Trump of copying and pasting his condolences and forgetting to change the location of the attack.

Trump’s tweet was subsequently deleted.

Authorities said officers shot and killed Kevin Janson Neal, 43, Tuesday after he fired shots in at least seven locations in Tehama County, including an elementary school. Five people were killed in the attack, including two of Neal’s neighbors and his wife.

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