The hearing will begin at 12:00 p.m. for the case of U.S. v. U.S. Army Staff Sergeant (E-6) Daniel D. Herman. The case concerns an Army soldier who was convicted of wrongfully broadcasting intimate visual images and making a false official statement. Representing the appellant will be Major Mitchell Herniak and Mr. Jonathan Potter. Representing the government will be Captain Stu Miller and Major Chase Cleveland. The Court Commissioners are Captain Andrew O’Grady and Captain Alex Vanscoy.
The three-judge panel will consist of Appellate Military Senior Judge Colonel Elizabeth Walker, Associate Judge Colonel Tim Hayes, and Associate Judge Colonel LaJohnne Morris.
Herman was tried at Fort Hood, Texas, before a general court martial appointed by Commander, III Corps and Fort Hood, Lieutenant Colonel Scott Z. Hughes, presiding. On May 14, 2022, a military judge sitting as a general court-martial convicted Herman (the appellant), contrary to his pleas, of six specifications of wrongful broadcast of intimate visual images and one specification of false official statement in violation of Articles 117a and 107, Uniform Code of Military Justice, 10 U.S.C. §§ 917a and 907 [UCMJ]. The military judge sentenced Herman to reduction to the grade of E-1, confinement for 13 months, and a bad conduct discharge. On May 23, 2022, the convening authority approved the findings and sentence as adjudged. On June 13, 2022, the military judge entered judgment.
Arguments will be heard on the following issue: “Whether the military judge erred by denying the appellant’s motion to suppress statements and derivative evidence.”
Professor Beth Kubala who arranged the court’s visit added, “This hearing should appeal to a number of students at Syracuse Law. The proceedings may be rooted in Military Law, but the matters the Court will discuss include issues pertinent to all law school students – constitutional rights, the privilege against self-incrimination, custodial interrogation, and even policy considerations.”
More information about the case can be found at this link.
Following the hearing, there will be a question-and-answer session with the judges, as well as a reception with judges and representatives of the Judge Advocate General’s Corps from Fort Drum in the Levy Atrium.
The History of the U.S. Army Court of Criminal Appeals
Before the Uniform Code of Military Justice (UCMJ), Army courts-martial were prosecuted using the Articles of War. The Articles of War were initially established in 1775 and amended most extensively in 1874. Military justice lacked uniformity and some sentences were excessive. There was no system of appellate review. The commander, as reviewing authority, conducted the only post-trial examination of the record of trial in peacetime.
On Aug. 23, 1917, in Houston, Texas, African-American Soldiers of the 24th Infantry rioted, killing 15 white men, including civilians, police officers, and National Guardsmen. In November 1917, 63 African-American Soldiers were court-martialed in the largest murder trial in American history. Fifty-eight were convicted. Thirteen of the convicted Soldiers were sentenced to death. Article 48 of the Articles of War authorized the command to carry out death sentences without submitting the case for further review or confirmation. The 13 Soldiers were hanged the next day with no appellate review and no clemency.
The Houston riot and ensuing executions exposed the lack of appellate review in court-martial proceedings. Soon after the executions, the War Department promulgated General Order No. 7 on Jan. 17, 1918, requiring the execution of any sentence involving death or dismissal of an officer to be suspended pending review and a determination of legality by the Office of the Judge Advocate General.
The UCMJ was enacted by the U.S. Congress in 1950 and took effect on May 31, 1951. Article 66 of the UCMJ gave The Judge Advocate General the power to create Boards of Review. The Boards could review all cases where the sentence approved by the convening authority affected a general or a flag officer, extended to death, a punitive discharge, or included confinement of one year or more. The UCMJ empowered the Boards to “weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.” Boards of Review could set aside findings or sentences, order a rehearing or, where it found the evidence insufficient, order the charges dismissed. Significantly, the UCMJ created the United States Court of Military Appeals to provide civilian review of courts-martial.
The Military Justice Act of 1968 changed the Boards of Review to the Courts of Military Review and made the board members judges. Though commanders initiated courts-martial, the emphasis shifted to attorneys conducting the proceedings under the watchful eye of a trial judiciary. The Act changed military justice practice to closely mirror the civilian court system, including a tiered system of appellate review.
Major General Kenneth J. Hodson, serving as The Judge Advocate General of the Army, advocated for the Military Justice Act of 1968. After retiring as The Judge Advocate General, Major General Hodson was immediately recalled to duty as Chief Judge of the Army Court of Military Review in 1971. He also held the concurrent title of Commander, U.S. Army Legal Services Agency. Major General Hodson was the first general officer to serve as the chief judge.
In 1994, the U.S. Army Court of Military Review was renamed the U.S. Army Court of Criminal Appeals. The name change coincided with the renaming of the U.S. Court of Military Appeals to the U.S. Court of Appeals for the Armed Forces.
Presently, the U.S. Army Court of Criminal Appeals is composed of three judicial panels. Each panel includes three appellate judges (with one judge appointed as the senior judge of that panel) and a commissioner. The Chief Judge, while not assigned full-time to a single panel, sits on cases with judges from all three panels and is also assigned a chief commissioner. The Clerk of Court staff provides paralegal support to the Court.
