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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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Gulf grows between Trump and Congress on trade

Published: Saturday, June 23, 2018 @ 5:15 AM

As President Donald Trump this week threatened $200 billion in new tariffs on Chinese imports, and then warned Europe that he would slap a 20 percent tariff on imported automobiles, members of both parties Congress accused the administration of starting a trade war which could cause collateral economic damage across the United States.

The differences were on display at a hearing Wednesday with Commerce Secretary Wilbur Ross, who took a bipartisan tongue lashing on a recent round of tariffs levied on imported steel and aluminum from Canada, Mexico and Europe.

“We’re picking winners and losers,” argued Sen. Pat Toomey (R-PA), who said those tariffs were already hurting businesses in his home state.

“Probably resulting – in my view – in far more jobs being lost than being gained,” Toomey told Ross, citing a very well-known Pennsylvania company that could find it less expensive to move jobs from the U.S. to Canada.

Almost every Senator on the panel had a story of a small business that was feeling the pinch due to Trump Administration tariffs, impacting all sorts of agricultural products, as well as manufacturing, big and small.

“Do you think we’re in a trade war right now?” asked Sen. Maria Cantwell (D-WA). “Because I do,” as Cantwell rattled off farm products that were losing markets because of retaliatory tariff measures.

Ross downplayed the cost of higher imported steel and aluminum, basically making the case that economic hardships were being overplayed.

“It’s a fraction of a penny on a can of Campbell’s soup, it’s a fraction on a can of Budweiser, it’s a fraction on a can of Coke,” Ross said.

That did not please the Senator from the state of Coca-Cola.

“Although a couple of pennies on a can is not much, a couple pennies times a billion is lots,” said Sen. Johnny Isakson (R-GA).

“We’re hit harder than any other state by the Canadian retaliatory tariffs,” said Sen. Rob Portman (R-OH), warning the Trump Administration against tariffs on imported automobiles, as GOP Senators labeled such actions a tax on consumers.

“Steel prices are going up – not just for foreign steel subject to tariffs, but also for U.S. steel,” complained Sen. Orrin Hatch (R-UT).

“Mexico’s buying their wheat from Argentina and their corn from Brazil,” said Sen. Pat Roberts (R-KS), as he told Ross that Kansas wheat exports were encountering troubles because of new retaliatory tariffs on U.S. exports, bringing bad economic news on the farm report.

Ross simply told Senators if other countries put new tariffs on U.S. exports, that was out of his control.

“We have no control over what another country does in retaliation,” Ross said.

The bipartisan complaints clearly had no impact, as by Friday, President Trump was on Twitter, issuing new threats against European auto imports.

As Democrats registered their opposition, they also couldn’t help but note the oddity of a Republican President going against what’s been a bedrock belief of the GOP.

“I feel like I’ve gone down a rabbit hole,” said Sen. Clare McCaskill (D-MO), who said she found it hard to believe the party of free trade now had a President in office who was doing the exact opposite.

“In a chaotic and frankly incompetent manner, you’re picking winners and losers,” McCaskill told Ross.

But for the President, this is about re-setting trade deals, which he says were tilted against the United States.

“As far as trade is concerned with other countries, we want fair and reciprocal trade, we don’t want stupid trade like we had for so long,” the President said at a rally in Minnesota.

“Remember the world reciprocal,” Mr. Trump said. “We have been ripped off by almost every country on Earth, our friends and our enemies.”

“But those days are over,” the President said to cheers from the crowd.

But while they’re cheering Mr. Trump on the stump, at the U.S. Capitol, they’re worried about a trade war.

“We’re getting into a war that’s going to cost lots of billions of dollars,” Isakson warned.

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House approves big, bipartisan bill to deal with opioid crisis

Published: Friday, June 22, 2018 @ 1:25 PM

In a fresh reminder that political cooperation is not dead on Capitol Hill, the House on Friday overwhelmingly approved a sweeping package of over fifty bipartisan bills to address the misuse of prescription opioid pain medicine, as lawmakers voted to expand a variety of services under Medicare and Medicaid to deal with the drug scourge.

“We can do things when we put partisan politics aside and work together,” said Rep. Gus Bilirakis (R-FL), one of a number of lawmakers who touted various provisions in the sweeping opioids measure.

“This particular bill, H.R. 6, is the crown jewel of all that legislation,” said Rep. Joe Barton (R-TX).

“This legislation will strengthen our efforts to advance treatment and recovery issues, and bolster the fight against deadly and illicit drugs,” said Rep. Rick Allen (R-GA).

“This is a big deal in the fight against the largest public health crisis in our country,” said Speaker Paul Ryan.

“Mr. Speaker, so often we hear about the partisan wrangling in Congress and clearly there are dividing lines on some high-profile issues,” said Rep. Steve Scalise (R-LA). “But this an issue where Republicans and Democrats have come together.”

The final vote was 396-14. The bill now goes to the Senate.

“Currently, Medicare doesn’t cover opioid treatment programs,” said Rep. Richard Neal (D-MA). “These bills are pieces of a large, complex puzzle. We need to find realistic solutions with long term outcomes.”

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Trump: GOP should give up on immigration until after 2018 elections

Published: Friday, June 22, 2018 @ 7:29 AM

A day after Republicans in the House defeated one more conservative immigration reform plan, and delayed action until next week on a second bill because of a lack of GOP votes, President Donald Trump on Friday suggested a different avenue entirely – urging Republicans in Congress to drop the issue until after the November elections.

“Republicans should stop wasting their time on Immigration until after we elect more Senators and Congressmen/women in November,” the President tweeted early on Friday morning, saying the answer was simple – get more GOP lawmakers in the 2018 mid-term elections.

“Elect more Republicans in November and we will pass the finest, fairest and most comprehensive Immigration Bills anywhere in the world,” Mr. Trump pledged, as he blamed Democrats and the Senate rules, which would force him to get 60 votes to do what he wants on immigration.

Mr. Trump’s suggestion came as GOP leaders were still looking for a magic legislative formula on immigration reform, as the issue has divided Republicans in both the House and Senate.

The suggestion by the President that immigration efforts are a waste of time came as Republicans were trying to fine tune a second immigration bill in the House, with hopes of approving that next week, before lawmakers go home for a July Fourth break.

Many GOP lawmakers had been hoping that the President instead would come out very publicly in favor of those efforts, and help convince some reluctant House Republicans to get on board, and vote for the plan, despite misgivings about certain provisions.

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House defeats one GOP immigration bill, delays vote on second plan

Published: Thursday, June 21, 2018 @ 3:04 PM

Struggling to find consensus on immigration reform, the House on Thursday rejected a more conservative Republican immigration reform bill, and then in a bid to salvage the effort, GOP leaders delayed action on a second immigration reform measure until Friday.

41 House Republicans voted against the first GOP bill, which was defeated on a vote of 231-193, as the plan received more votes than most GOP lawmakers had expected.

The Republicans who voted against the first GOP bill were a mixture of the Republican Party’s different flanks, featuring more conservative lawmakers who wanted to do more, and moderates who felt it went too far.

“This is a difficult issue,” said Rep. Mark Walker (R-NC), who voted for this bill, but wouldn’t tell reporters whether he would support a second measure on Friday.

“Any jot or tittle one way or the other, you lose people because of the complexities, because of the sensitivities, and the emotions in this particular piece of legislation,” Meadows said.

Here is the list of the 41 Republicans who voted “No.”

One of the reasons more moderate Republicans voted against the first bill was because of the lack of a path to citizenship for younger illegal immigrant “Dreamers,” who were brought to the U.S. by their parents.

While that is in the bill to be voted on Friday, those provisions then could cause some other Republicans to vote against it, arguing it is nothing but amnesty.

“I’m a big fat no, capital letters” said Rep. Lou Barletta (R-PA), after the first vote.

“It doesn’t do anything to stop illegal immigration,” Barletta added.

In debate on the House floor, Democrats focused mainly on the more recent immigration battle over the separation of illegal immigrant families, blaming President Donald Trump for doing little to seek compromise.

“On this issue, God is going to judge you as well,” said Rep. Michael Capuano (D-MA) said to Republicans who were backing the President’s get-tough effort on the border.

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