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Week in Review 30 April 2021

4/30/2021

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CONGRESS

The Military Justice Improvement  & Increasing Prevention Act was "docketed" with Senate yesterday. The copy we have is undergoing some "administrative" corrections and will be posted as soon as we get it.

ACCA
 
United States v. Batissa. A rather short order denying a writ of mandamus that the court order Appellant’s record of trial to be immediately filed with the court.
 
Will we see more of these?

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The New MJIA-IPA

4/30/2021

2 Comments

 
Greetings all, here is the much awaited new proposal introduced 29 April 2021 for change.

This Act may be cited as the "Military Justice Improvement & Increasing Prevention Act."
​Standing by for comments.

Cheers, Phil Cave. (Lesson learned, you can't post Word documents, they have to be in .pdf)
2 Comments

Scholarship Watch: Fidell -- MILITARY JUSTICE SINCE 1950: A PYRRHIC VICTORY?

4/29/2021

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"A case can be made for the ironic proposition that, by achieving something closer to parity with the civilian courts, the long-term success of the vision I impute to Judge Everett sounded the death knell for the current system—an increasingly Lilliputian jurisdiction[70] (actually a congeries of sibling micro-jurisdictions applying the same statute but wearing different uniforms) that generates so few cases and whose claim to specialization is so eroded that it cannot realistically expect to survive in its current form over the long term. Put another way, did he lose the war by winning it?"

Full article here.

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....Incoming

4/29/2021

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Two events today of note announced by Protect Our Defenders.
This is it. Today is the big day.

The Military Justice Improvement & Increased Prevention Act will be introduced by Senators Gillibrand and Ernst. Our President Col. Don Christensen, USAF (ret) will be speaking at a press conference with the senators at 11 AM Eastern.

Then at 1:40 PM Eastern, we’re hosting a live Zoom call from Capitol Hill (register now!). We’ll be joined by the bill’s lead author Senator Gillibrand, survivors and other guests. Together, we’ll unveil our community advocacy plan to pass this bill and answer your questions. We’re going to need everyone’s help. Momentum is on our side. We can do this!
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CAAF decides Furth

4/26/2021

1 Comment

 
In United States v. Furth , Judge Ohlson writes for the court finding no prejudice, while Judges Maggs and Hardy dissent and argue that a Dubay hearing was required before the court can determine prejudice or lack thereof.
A military judge sitting as a general court-martial convicted Appellant, pursuant to his pleas, of one specification of absence without leave (AWOL) and one specification of wrongful appropriation. The convening authority approved Appellant’s adjudged sentence of a reprimand, confinement for three months, and dismissal from the service. The United States Army Court of Criminal Appeals (CCA) affirmed the findings and only so much of the sentence as provided for confinement for three months and a reprimand.

​We granted review on the following issue: Whether Appellant received effective assistance of counsel when he was erroneously advised that his pending resignation request, if approved, would vacate his guilty plea. United States v. Furth, 80 M.J. 319 (C.A.A.F. 2020) (order granting review). We assume without deciding that trial defense counsel’s performance was deficient, but conclude that Appellant has failed to establish prejudice. We therefore affirm the lower court’s decision that there was no ineffective assistance of counsel in this case.
1 Comment

TOMORROW: A Discussion Regarding the Civilian-Military Defense Counsel Relationship

4/26/2021

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Topic: CAAFlog: A Discussion Regarding the Civilian-Military Defense Counsel Relationship
Time: Apr 27, 2021 12:00 PM Eastern Time (US and Canada)


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New Grants Posted

4/26/2021

1 Comment

 
​"Orders Granting Petition for Review
 
No. 21-0069/AF. U.S. v. Jerard Simmons. CCA 39342. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
 
WHETHER THE MILITARY JUDGE ERRED IN ALLOWING THE GOVERNMENT TO MAKE A MAJOR CHANGE TO A SPECIFICATION, OVER DEFENSE OBJECTION – ALMOST TRIPLING THE CHARGED TIME FRAME – AFTER THE COMPLAINING WITNESS'S TESTIMONY DID NOT SUPPORT THE OFFENSE AS ORIGINALLY CHARGED AND THE PROSECUTION HAD RESTED ITS CASE.
 
Briefs will be filed under Rule 25.*
 
* The Clerk of the Court is ordered to seal pages 11-14 of the record of trial (Military Rule of Evidence 412 hearing).
 
No. 21-0158/AR. U.S. v. Floyd C. Guyton, Jr. CCA 20180103. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:
 
I.  WHETHER APPELLANT WAS DENIED THE RIGHT TO A SPEEDY TRIAL UNDER RCM 707 AND THE SIXTH AMENDMENT TO THE CONSTITUTION.
 
II. WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS ERRED BY PURPORTING TO AFFIRM "FORFEITURE OF ALL PAY AND ALLOWANCES" WHERE THE CONVENING AUTHORITY DISAPPROVED SUCH PUNISHMENT. SEE ARTICLE 66(c), UCMJ.
 
Briefs will be filed under Rule 25 on Issue I only."
1 Comment

BREAKING: AP: 90-Day Commission to Recommend Removing Commander Disposition Authority Over Sexual Assault Cases

4/22/2021

3 Comments

 
"The review panel said that for certain special victims crimes, designated independent judge advocates reporting to a civilian-led office of the Chief Special Victim Prosecutor should decide two key legal questions: whether to charge someone and, ultimately, if that charge should go to a court martial, the officials said. The crimes would include sexual assault, sexual harassment and, potentially, certain hate crimes....The officials said other initial recommendations sent to Austin seek to professionalize the workforce involved in the cases, calling for a military justice career track for prosecutors, judges, investigators and victims’ advocates. They also recommended improvements in allowing victims to get protective orders, and said there should be a set timeline for the justice process."

Link here.

Here is a link to the "I am Vanessa Guillen Act." for potential comparison once a public copy of the IRC report becomes available. A guess, but we are not likely to see a FR notice for public comment initially, if at all.

Update from DoD PAO after FOIA request.

​The document referred to in the article is pre-decisional and not available for public release while deliberations continue. I can share the following, attributable to John Kirby, Pentagon Press Secretary:
 
We can confirm that Lynn Rosenthal, Director of the Independent Review Commission on Sexual Assault, delivered to Secretary Austin today an initial set of recommendations. These particular recommendations referred to the accountability line of effort. The Secretary will now review the recommendations and consult with service leaders. The Secretary has asked the services to provide their candid assessment and feedback of these initial recommendations by the end of May.
 
Cheers PC&BF
3 Comments

CAAF Reverses the NMCCA in Mader

4/22/2021

1 Comment

 
There are few times that I am left baffled by a lower court's reasoning, Mader is one of those. CAAF correctly reverses the NMCCA, remanding Appellant's case "to determine whether Appellant’s mistaken belief that the junior Marines consented was reasonable, and if so, whether Appellant established that his conduct was precipitated by his mistaken belief that his victims consented.

In an opinion by Judge Hardy, totaling just seven pages, CAAF makes clear that they are not persuaded to deviate from their general rule that consent is a defense to simple assault. Sergeant Thomas E. Mader was charged with four specifications of simple assault consummated by battery, three of those specifications related to his burning of cigarettes on junior Marines at a farewell party. These three specifications are the reason for CAAF's review. 

On appeal the NMCCA held that Appellant “had an honest, though mistaken, belief that the junior Marines consented to being burned by the cigarette.” However, the NMCCA affirmed Appellant's conviction, also holding that Appellant's actions could have been charged as hazing, to which no defense as to consent existed, and that it is contrary to public policy to allow victims to consent to cigarette burns. It is for these two reasons that CAAF reverses the NMCCA. 

Judge Hardy notes the important facts, Appellant, while he could have been charged with hazing by the government, was ultimately charged with simple assault. This charging decision by the government allowed Appellant to have a defense as to consent, the government cannot now allege that Appellant's assaults were a part of hazing and then deny Appellant a defense to his charged crimes. I would call this a steadfast principle that would not have to be reiterated, but yet it is the main ruling in this case. 

Additionally, CAAF finds the NMCCA's public policy argument, "untenable." CAAF's reasoning is simple. First, CAAF has never recognized a public policy interest that overcomes the principle that consent is a defense to simple assault. Second, the NMCCA did not specify a public policy reason that would support their finding, let alone a compelling one.

This case screams government overreach but CAAF makes clear that this will not sail. 

Mader Opinion here.

Elizabeth M. Berecin

Managing Editor

1 Comment

Bloomberg Article on Sex Assault Prosecution

4/22/2021

7 Comments

 
A Better Way Forward for Prosecuting Military Sexual Assaults​

"The current system for prosecuting members of the U.S. military for sex crimes is flawed, writes Kevin Carroll, a U.S. Army reservist who served as a military intelligence officer in Afghanistan and Iraq. Purely military offenses should remain in military court, he says, but Congress should allow other crimes to be tried in federal and state court systems."

The relevant passage:

"System Has Design Flaws

The design of the military justice system is inherently problematic. Commanders, who are non-lawyers, decide whether to prosecute, an authority we do not give governors or mayors (and try to keep distanced from presidents). Commanders evaluate prosecutors for promotion, in a way in which governors and mayors do not evaluate attorneys general or district attorneys.

Commanders also pick the service members who serve as jurors at the courts-martial they convene, which is unthinkable in a civilian context. The temptation to exercise “unlawful command influence” over the disposition of a case is often irresistible to the type-A personalities who wear stars.

While commendable efforts are made to insulate military judges and defense counsel from commanders’ pressure, and these good professionals take their ethical responsibilities seriously, the uniformed bar is insular, and the path to advancement narrow. There is no military correlate to the independence of a life-tenured Article III judge (or a New York state judge with a 14-year term, for example), or a federal defender who only reports to the chief judge of a circuit court of appeals.
Few active duty military lawyers have opportunities to clerk for civilian judges, or move between private practice, academia, or posts elsewhere in government, experiences which ideally broaden their civilian counterparts’ perspectives. Despite excellent JAG lawyers’ talents, military practice tends over time to lead toward more parochial views.

Judge advocates serve crucial roles beyond adjudicating criminal cases—in administrative and operational law, for example. And there is an irreducible number of military cases that JAGs alone can handle. Some proceedings unavoidably take place in war zones. Others are for crimes that have no counterpart in Title 18 of the U.S. Code, and appear only in the punitive articles of the Uniform Code of Military Justice (malingering, desertion, missing movement, disrespect, and misbehavior before the enemy). Purely military offenses still ought to be tried by, and in front of, service members.
​
But for crimes that can be tried at least as well by the federal and state court systems, including most sex crimes, Congress should tell the military to let civilian attorneys take the lead."

​Link here.
7 Comments

Week in Review

4/22/2021

2 Comments

 
SCOTUS (Courtesy of SCOTUSBlog)

On 20 April 2021, the court heard oral argument in Greer v. United States on this issue,
​Whether, when applying plain-error review based on an intervening United States Supreme Court decision, Rehaif v. United States, a circuit court of appeals may review matters outside the trial record to determine whether the error affected a defendant’s substantial rights or impacted the fairness, integrity or public reputation of the trial.
​Appellant’s brief introduction,
When Mr. Greer was charged with, tried on, and convicted of possessing a firearm as a convicted felon, unanimous circuit precedent held that knowledge of one’s status as a person prohibited from possessing a firearm was not an element of 18 U.S.C. § 922(g). At trial, therefore, the government did not submit evidence or argue to the jury that Mr. Greer knew his status at the time of the offense, and the jury made no finding on that issue. While Mr. Greer was on direct appeal, this Court overturned the unanimous circuit precedent and held that such knowledge is an essential element. Rehaif v. United States, 139 S. Ct. 2191, 2197 (2019). The Eleventh Circuit affirmed Mr. Greer’s conviction on plain-error review. J.A. 116–22. By considering materials outside the trial record—materials that were never admitted into evidence nor presented to the jury—the Eleventh Circuit decided in the first instance what a jury “could have” found as to the knowledge-of-status element. Id. at 121. Mr. Greer challenges that novel approach to appellate review.
Courtesy of  DMLHS,  on 21 April 2021, the Supreme Court granted certiorari in,  Hemphill v. New York. Noted Confrontation law expert Jeffrey Fisher represents the appellant. From the petition,
​A litigant’s argumentation or introduction of evidence at trial is often deemed to “open the door” to the admission of responsive evidence that would otherwise be barred by the rules of evidence.

​The question presented is: Whether, or under what circumstances, a criminal defendant who opens the door to responsive evidence also forfeits his right to exclude evidence otherwise barred by the Confrontation Clause. 
The first of several reasons for granting the writ has itself three parts.
Federal and state courts are deeply divided over the question presented..

A. Three jurisdictions hold that criminal defendants never “open the door” to the admission of evidence that is otherwise barred by the Confrontation Clause.

B. Five jurisdictions hold that defendants “open the door” to testimonial hearsay when they introduce a testimonial statement by the same declarant.

C. Three jurisdictions hold that defendants “open the door” to testimonial hearsay whenever they create a “misleading” impression at trial.
And, CAAF anyone?

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CAAF Grants Review

4/20/2021

8 Comments

 
"No. 21-0135/AF. U.S. v. D'Andre M. Johnson. CCA 39676. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:
 
I.   WHETHER THE MILITARY JUDGE PLAINLY ERRED BY PERMITTING TRIAL COUNSEL TO ARGUE FACTS NOT IN EVIDENCE.
 
II.  DURING CLEMENCY, APPELLANT DETAILED THE DEPLORABLE CONDITIONS OF HIS POST-TRIAL CONFINEMENT. ON APPEAL, HE PROVIDED SUPPLEMENTARY INFORMATION ON THESE CONDITIONS TO SUPPORT HIS CLAIMS OF CRUEL AND UNUSUAL PUNISHMENT AND TO SEEK SENTENCE RELIEF. DID THE LOWER COURT ERR WHEN IT DECIDED IT COULD NOT CONSIDER THIS SUPPLEMENTARY EVIDENCE FOR ITS SENTENCE APPROPRIATENESS REVIEW?
 
No briefs will be filed under Rule 25."

Elizabeth M. Berecin

Managing Editor

8 Comments

Save the Date: Panel on the Civilian-Military Defense Counsel Relationship -- with a focus on ethics

4/20/2021

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Given the great deal of interest in the discussion regarding relations between civilian and military defense counsel, CAAFlog will host a one hour Zoom panel and Q&A relating to that subject. Panelists TBA. This will occur one week from today, at noon EST. Those wishing to attend or participate anonymously should join as guests (not through their personal Zoom account) and should anonymize their names. 

Topic: CAAFlog: A Discussion Regarding the Civilian-Military Defense Counsel Relationship
Time: Apr 27, 2021 12:00 PM Eastern Time (US and Canada)


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Zoom Event this Evening: An Intro to Military Justice (aimed at law students)

4/20/2021

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Southwestern Law School is hosting (with 1 hr CLE) a military justice panel discussion TUESDAY APRIL 20th at 6:00PM PST (9pm EST).  Click here to register.

​"NIMJ's Prof. 
Rachel VanLandingham, Protect Our Defender's President Don Christensen, Community Veterans Justice Project's founder & Executive Director Jodi Galvin, and NIMJ's Prof. Josh Kastenberg will be discussing everything from differences between military and civilian criminal justice, anticipated reforms, the military justice system's (mis)handling of sexual assault, pressing veterans' issues and more."
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Scholarship Saturday: Internet content preservation requests and the Constitution

4/17/2021

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This week, Scholarship Saturday is pleased to present the work of 3rd-year UMass Law School student Alexandria Murphy. Her piece, starting after the break, introduces an article written by UC Berkley law professor Orin Kerr concerning the constitutionality of the internet content preservation statute that is so often used by military law enforcement agencies, especially when investigating online crimes.

- Isaac Kennen, Scholarship Editor


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Week in Review

4/16/2021

1 Comment

 
ACCA

United States v. Meneses.
​A military judge sitting as a general court-martial convicted appellant, pursuant to his plea, of one specification of indecent recording, in violation of Article 120c, Uniform Code of Military Justice, 10 U.S.C. § 920c [UCMJ]. The military judge sentenced appellant to a bad-conduct discharge, confinement for seven months, and reduction to the grade of E-1. Consistent with the pretrial agreement, the convening authority approved the portion of the sentence extending to a bad-conduct discharge, confinement for 180 days, and reduction to the grade of E-1.
Appellant argues the military judge abused her discretion, by accepting his guilty plea because there was an insufficient factual basis for concluding that appellant indecently photographed the victim.
  • The government agreed as did the  court. [Note, there are cases where the government concedes and issue, the court disagrees, and finds against the appellant.]
  • Because Appellant did not challenge acceptance of the plea to making an indecent recording of the victim, the court amends the finding of guilty by deleting the words "photograph and" from the specification. In its pleading, the government agrees the record contains an insufficient factual basis concerning appellant photographing the victim and concurs with appellant's proposed remedy.
  • The modified findings and the sentence are affirmed.

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1 Comment

Summary Disposition and a Certified Case

4/15/2021

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"​Petition for Grant of Review - Summary Disposition
 
No. 21-0138/NA. U.S. v. Calvin Halfacre. CCA 201900210. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.*
 
* It is directed that the promulgating order be corrected to accurately reflect that Appellant pleaded guilty to each specification under Charge II excepting the language "was to the prejudice of good order and discipline in the armed forces and" in each specification and guilty to Charge II.
 
Certificate for Review Filed
 
No. 21-0222/NA. U.S. v. Chase T. Miller. CCA 201900234. Notice is hereby given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:
 
DID THE LOWER COURT ERR IN FINDING THE CONVENING AUTHORITY ABUSED HIS DISCRETION UNDER R.C.M. 1109 BY ACTING AFTER APPELLEE SUBMITTED R.C.M. 1106 CLEMENCY MATTERS BUT BEFORE THE MILITARY JUDGE ISSUED HIS WRITTEN POST-TRIAL RULING?
 
DID THE LOWER COURT ERR IN FINDING THAT THE STAFF JUDGE ADVOCATE'S REVIEW WAS UNINFORMED UNDER R.C.M. 1109 WHERE THE REVIEW WAS COMPLETED AFTER APPELLEE SUBMITTED R.C.M. 1106 CLEMENCY MATTERS AND REVIEW OF THE MILITARY JUDGE'S POST-TRIAL RULING WAS NOT REQUIRED UNDER R.C.M. 1109?
 
DID THE LOWER COURT ERR IN FINDING THAT THE POST-ACTION WRITTEN RULING WAS A SUBSTANTIAL OMISSION WHERE THE RULING WAS NOT AN R.C.M. 1106 MATTER AND NOTHING IN THE NEW RULES REQUIRED THE CONVENING AUTHORITY TO CONSIDER THE RULING PRIOR TO TAKING ACTION UNDER R.C.M. 1109 EVEN IF INCLUDED IN THE RECORD OF TRIAL?
 
Appellant will file a brief under Rule 22(b) in support of said certificate on or before the 12th day of May, 2021."
Editor's note: Halfacre was granted review for a ​clerical correction, and therefore the petitioner is now eligible to petition for cert at SCOTUS. The same is not true of all the other cases that, for whatever reason, failed to gain enough votes to be granted review. Does this make sense?
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Does Changing Politics Equal Reform?

4/15/2021

6 Comments

 
A Washington Post article that's worth the read:

Pentagon leaders have opposed plans overhauling the military system for trying sexual assault for years. Has the time come for change?
6 Comments

D.C. Circuit splits the difference on judicial disqualification.

4/12/2021

4 Comments

 
As CAAFLog readers may remember, the D.C. Circuit heard argument this past January in a mandamus case to come out of the military commissions with potential relevance to military justice as a whole. Again, the question was whether a military judge serving on one of the military commissions violated judicial ethics by seeking employment elsewhere in the government without telling the parties. In 2019, the Circuit had vacated almost five years of proceedings in the Al-Nashiri case after Col Vance Spath, USAF, had secretly applied for an appointment as an immigration judge. Most recently, the Circuit confronted the same problem with CAPT Kirk Waits, USN, the military judge who initially presided over the case of United States v. Al-Iraqi (aka Nashwan Al-Tamir).

On Friday, the D.C. Circuit issued its decision denying the writ in In re Al-Tamir, though making a few notable holdings along the way that military justice practitioners are likely to find worthy of note. In something of a judicial eye roll, Judge Tatel, who wrote the opinion in both the Al-Nashiri and Al-Tamir cases, started his opinion for the Court by describing the situation as an "unfortunately familiar quandary." 

With no real debate over the merits of whether  CAPT Waits should have disqualified himself, the only real question the Court confronted was the remedy. Tamir had sought to have his case dismissed outright, a remedy the lower military commission courts had declined in favor of permitting Tamir to seek reconsideration of any decision rendered by the military commission that Tamir could show had been tainted by Waits' misconduct. 

At oral argument, the Circuit seemed concerned by the narrowness of the proposed remedy. This led counsel for the government to stipulate from the podium that Tamir could seek to have any ruling reconsidered without making a particularized showing that the ruling was tainted. Tamir suggested that this would still be inadequate, but the Circuit disagreed, finding that the government's concession gave Tamir everything that the vacatur had achieved in Al-Nashiri, "except that it affords al-Tamir the added benefit of allowing him to retain favorable rulings."

A trickier aspect of the case revolved around the job search of Matthew Blackwood, the "supervisory attorney advisor," who had served on Tamir's case for most of the last half-decade. The Court was clearly disturbed by Blackwood's job hunt, but ultimately got stuck on precisely what ethical standards governed an "attorney advisor" in the first place. The government had insisted that attorney advisors should be afforded the lenient rules afforded to judicial law clerks. Tamir had said the ordinary rules of judicial conduct should apply. The Court, for its part, figured that attorney advisors fell somewhere in between and the legal uncertainty over what rules applied proved fatal under the strict mandamus standard that applies in the D.C. Circuit. 

The Court, therefore, held that it needed resolve the issue. "We have some concerns about Blackwood’s failure to disclose to his supervising judges his pursuit of outside employment and his use of his work on the commission in his applications," the Court wrote. However, "we cannot say that his choices 'clearly and indisputably' gave rise to a conflict warranting recusal." The Court accordingly denied relief and left the merits to another day.

Michel Paradis

LOAC Editor

4 Comments

New Grant

4/12/2021

0 Comments

 
🚨🚨🚨
"Order Granting Petition for Review
 
No. 21-0184/AR. U.S. v. Joseph P. Popp. CCA 20190333. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
 
WHETHER THE ARMY COURT OF CRIMINAL APPEALS HAD JURISDICTION WHERE THE CONVENING AUTHORITY ELECTED TO TAKE NO ACTION ON THE SENTENCE FOR A SPECIFICATION ALLEGING THE COMMISSION OF AN OFFENSE BEFORE JANUARY 1, 2019.
 
No briefs will be filed under Rule 25."

​ACCA decision here.
0 Comments

Save the Date: A Conversation about the Relationship between Civilian and Military Defense Counsel

4/10/2021

0 Comments

 
CAAFlog will hold a virtual panel conversation about the relationship between civilian and military defense counsel on April 27th at 12:00PM EST. Details and link posted at a closer date. 
0 Comments

Scholarship Saturday: Military service and criminality

4/10/2021

0 Comments

 
In February, the journal Social Sciences published an article authored by the Chair in Justice Studies at Montclair State University, Dr. Christopher Salvatore, and the Director of Research at the National Police Foundation, Dr. Travis Taniguchi. Their publicly peer-reviewed article is entitled “Military Service and Offending Behaviors of Emerging Adults: A Conceptual Review” and discusses whether military service suppresses or encourages criminality among young adults. Salvatore and Taniguchi ultimately conclude that more thorough research is required, but also offer a fascinating discussion of the research to date.


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United States v. Henry

4/10/2021

3 Comments

 
CAAF finds in favor of the government for their Article 62(a)(1)(B), UCMJ, appeal in Henry. The court finds the military judge abused his discretion in excluding four  statements as hearsay. Chief Judge Stucky writes for the court with Judges Ohlson and Maggs separately dissenting for generally similar reasons.

The government offered prior out of court statements as either excited utterances or present sense impressions under Mil. R. Evid. 803. The military judge disagreed as did the Army Court of Criminal Appeals. The basis for the MJs exclusion was a "that the Government failed to lay a proper foundation, specifically that there was insufficient evidence as to when the alleged assault occurred."

There are two ACCA opinions, one in January 2020 and one in June 2020. Judge Stucky tells us that, 
At trial, the Government sought to introduce the following four statements for the truth of the matter asserted, under the excited utterance or present sense impressions exceptions to the rule against hearsay:

       (1) JH’s statement to SSG DC: “He’s beating my mom. He’s beating my mom.”

       (2) JH’s exclamation: “You better not hit her again.”

       (3) KH’s statement to SSG DC: “He hit me. He hit me.”

     (4) KH’s statement to the 911 operator that her husband had “been beating me for the last couple of hours.”

In an Article 39(a) session on the admissibility of these statements, KH testified for the defense. She stated that she had told JH to run over to SSG DCs house and tell him to call 911, and she lied when she told SSG DC that the accused had beaten her. At the Article 39(a) session, the military judge denied the admission of the statements as exceptions to hearsay or under the residual hearsay exception. He did not make a finding that KH’s recantation was at all credible, nor did he reference it his ruling.
The MJ had four reasons to exclude the statements.
  1. "The Government did not establish when the alleged startling event occurred."
  2. The testifying witness "did not know the declarants well, he could not say whether they were speaking while under the stress of an exciting event.
  3. The Government had not shown that JH had personally witnessed the assault that he described."
  4. The alleged injuries did not match the description of the assault.
​Since the military judge based his ruling on an incorrect view of the law—requiring proof of personal knowledge and considering each statement in isolation—and a view of the facts that leaves us firmly convinced that a mistake was committed—that there was no evidence as to when the assault occurred or that JH could have observed it—we hold that he abused his discretion by excluding the four statements of JH and KH. 
Judges Ohlson and Maggs conclude--my interpretation--that the majority ignore the abuse of discretion standard. While admitting the judge could have ruled either way and been right, the dissenters find the military judges findings were not clearly erroneous and he followed the law.

​Cheers, P.C.
3 Comments

Week in Review

4/9/2021

0 Comments

 
AFCCA

United States v. Humpel.

A military judge sitting as a special court-martial convicted Appellant, in accordance with his pleas pursuant to a pretrial agreement (PTA), of using drugs. Sentence: Big Chicken Dinner, 2 months, and two sides.

United States v. Huff. Appellant was sentenced to a Bad-conduct discharge, confinement for 24 months for two specifications of possessing CP. Appellant is a winner on his fourth assignment of error.

On appeal, Appellant raises four assignments of error: (1) whether the military judge erred by admitting a certain exhibit over defense objection; (2) whether certain language should be excepted from two specifications; (3) whether the entry of judgment should be corrected to reflect that Charge I and its specification were dismissed “with prejudice;” and (4) whether the convening authority erred by not taking action on Appellant’s sentence as required by Executive Order 13,825, § 6(b), 83 Fed. Reg. 9889, 9890 (8 Mar. 2018), and Article 60, UCMJ, 10 U.S.C. § 860.
And AFCCA laps Navy, see below.

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Tensions between civilian and military defense counsel?

4/8/2021

18 Comments

 
I was perusing the legal ethics in military justice symposium that I posted a while back. I revisited this article about the "house divided" -- tensions between civilian and uniformed defense counsel. Murdough writes: "The military justice system puts its uniformed MDC in this position, and therefore, the military services should provide their MDC with more comprehensive ethical standards and guidelines to include explicitly permitting, if not directing, MDC to share concerns about a CDC’s performance with their client. Congress and the President should reform Article 38 and its implementing regulations to ensure CDC cannot assume that MDC will shore up their inadequate performance." This is a bit strange to read, because every story that I hear is one of an experienced civilian defense lawyer dealing with a new military lawyer. The impediments to gaining experience have been well documented in past posts by Don Christensen. Which is the bigger problem: inexperienced civilian defense counsel or inexperienced uniformed defense counsel? Anecdotes welcome.

Brenner Fissell

EIC


Read Don Rehkopf's article, THE CARE AND FEEDING OF YOUR CIVILIAN DEFENSE COUNSEL, here.
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