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Konstantin Toropin, A Resignation and Mental Health Screening: The Unfolding Saga of the Marine Who Called Out Leadership on Afghanistan:
"The story of Lt. Col. Stu Scheller, the Marine officer who posted a viral video demanding accountability from military leaders for the failures in Afghanistan, took a strange turn this week after he posted a new video Sunday in which he resigns his commission "effective immediately" and threatens to "bring the whole f---ing system down."" Three accused are being arraigned today in connection with two bombings in Indonesia in 2002 and 2003. This is the first military commission arraignment in many years. Update: Today did not go well, it seems. Carol Rosenberg reports that the proceedings today were "the latest example of the delays that have plagued Guantánamo's justice system nearly 20 years after it was chosen to hold detainees captured after the 9/11 attacks in the global effort to track down terrorists." Update 2 (h/t Ben Farley):  CAAF currently has four openings, links to each position are provided below. Good luck to all that apply!
Elizabeth M. BerecinManaging Editor A reader sent us this story from the Daily Wire: Active Duty, Retired Naval Intelligence Members Told They Cannot ‘Disrespect’ Biden Over Afghanistan Debacle
One should keep this in mind the next time someone says retiree prosecutions are rare, and that therefore we shouldn't care that much about retiree jurisdiction. The threat of prosecution may be much less rare, and also works to chill expressive conduct and speech. Forty-three law professors signed the below letter in favor of military justice reform. Signatories include luminaries such as Erwin Chemerinsky (the most cited law professor in the country) and Ian Ayres (one of the most cited law professors at Yale Law School). 
The SixthProf. Colin Miller alerts us to the Sixth Circuit's decision in McNeill v. Bagley. So, in a murder/shooting case with no physical/forensic evidence, does the State violate Brady by failing to disclose (1) that the State's key eyewitness, who had a longstanding relationship with the defendant, told the police on the night of the murder that the defendant was NOT the shooter; and (2) a police report regarding an alternate suspect? In a 2-1 decision, the appeals court tells us that the, admittedly withheld, information was not material under Brady. McNeill Jr. was convicted and sentenced to death in Ohio state court for the aggravated murder of Blake Fulton. McNeill appeals the district court’s denial of his petition for habeas corpus, in which he argued that the prosecution in his case failed to turn over material under Brady v. Maryland and created a false impression in violation of Napue v. Illinois. The alleged Brady material included two police reports, one summarizing an interview with the prosecution’s primary witness, Robert Rushinsky, who initially failed to—but ultimately did successfully—identify McNeill as the culprit, and the other detailing a potential suspect who was quickly dismissed as a suspect by the police. It also included three audio recordings, one of the same Rushinsky interview addressed in the report, a second Rushinsky interview, and a third interview with a potential alibi witness, Marko Roseboro. The warden concedes that these materials were withheld (with the exception of the audio recording of the first Rushinsky interview, which was actually played at trial), but argues that McNeill’s arguments are procedurally defaulted and, in the alternative, that none of the evidence was material as defined by Brady. We agree as to the materiality of the evidence and affirm the district court. We also agree with the district court that the prosecution did not create a false impression at trial. "Miscellaneous Docket - Summary Disposition
No. 21-0331/MC. In re Jasper Casey. On consideration of the petition for extraordinary relief in the nature of writ of mandamus and prohibition, Petitioner's motion for an emergency stay of the Navy-Marine Corps Court of Criminal Appeals order, and Respondent's motion to return the joint appendix, it is ordered that motion for an emergency stay of the Navy-Marine Corps Court of Criminal Appeals order is denied, that the petition for extraordinary relief is denied, and the motion to return the joint appendix is denied as moot." We have heard that the underlying issue here is an inability to contact a client in order to establish an attorney-client relationship for the purposes of the appeal. Symposium on Military JusticeIn honor of its 30th anniversary, the National Institute of Military Justice, co-sponsored by Georgetown University Law Center’s Center on National Security and the Law, will host an in-person symposium on military justice on October 28, 2021 at Georgetown University Law Center. The symposium will feature panel presentations of works in progress from various invited contributors, with room for a small number of additional unsolicited papers to be selected by a committee of peer reviewers. Papers selected for inclusion in the symposium will be published, along with the invited papers, in the Journal of National Security Law & Policy. Authors of selected papers are invited to present them in-person at the symposium, although travel expenses will not be provided. Please submit papers to [email protected] by September 30, 2021 at midnight ET. Papers should address a military justice topic, should be fewer than 4,000 words in length, be of scholarly content and tone and conform to the requirements outlined here. Cheers.Do you have something that may interest the community--an issue, a case, or a theory. Feel free to email [email protected]. Any communication will be treated with the utmost confidentially, applying the "ultra high attorney-client-informer" privilege. For those of us who gossip (network) among ourselves, this is the privilege we give each other. It can at times be something of an Alfonso-Gaston scenario, but it is what it is.
Got a 750+/- post you'd like to submit--have at it. We'll do our best to anonymize it and let you have the last say before posting--heh, heh, unless you want to put your name on it. [email protected]. 1. Pfizer is now APPROVED. See FDA announcement here. Today, the U.S. Food and Drug Administration approved the first COVID-19 vaccine. The vaccine has been known as the Pfizer-BioNTech COVID-19 Vaccine, and will now be marketed as Comirnaty (koe-mir’-na-tee), for the prevention of COVID-19 disease in individuals 16 years of age and older. The vaccine also continues to be available under emergency use authorization (EUA), including for individuals 12 through 15 years of age and for the administration of a third dose in certain immunocompromised individuals. 2. "The Defense Department is preparing “guidance to the force” to make the vaccine mandatory, with a timeline to be provided in the coming days, Pentagon press secretary John Kirby told reporters." The Hill, Aug. 23, 2021. Cheers.TDC are required to advise a client of their post-trial rights in the event of a conviction. That advice is by necessity general until it is known what the client is convicted of and what the sentence is. Regardless, a written acknowledgement of that advice is later part of the record of trial. After trial the rights become known, and those can be better explained to the client. When completing the appellate rights advice it is imperative the client be told to give a good contact address or information (even if it's a parent) where they can be contacted by appellate counsel. (Yes, quite a few might still be in the Brig serving at their majesty's pleasure and their physical location easily known.) It is imperative the client be told over and over that they should keep any change of address current with the appropriate office or officials designated in the post-trial rights. Why is this important? Without current and accurate information, the appellate counsel will have difficulty talking to the appellant and forming an attorney-client relationship. As we know, counsel cannot effectively form an attorney-client relationship with the appellant or help them advance their appeal if there is no communication. That said, there are clients who fall off the map, something all appellate counsel experience have from time to time. Let's say an appellate counsel is faced with the sitaution of a non-responsive (I'll call it that) appellant with a case pending an Article 66(c), UCMJ, review. Now what? We know that the CCA has an obligation to thoroughly review the record, identify issues, and decide if those issues warrant relief. Grosty at 434. The case law makes it clear, however, that a brief from the Appellant's advocate is a necessary and important part of the review. The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. The no-merit letter and the procedure it triggers do not reach that dignity. Counsel should, and can with honor and without conflict, be of more assistance to his client and to the court. His role as advocate requires that he support his client's appeal to the best of his ability. Of courst, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court -- not counsel -- then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal. United States v. Grostefon, 12 M.J. 431, 433-34 (C.M.A. 1982) citing Anders v. California, 386 U.S. 738, 744 (1967). While Grosty and Anders talk about issues the appellant wants raised regardless of appellate counsel's professional opinion, the principle of effective advocacy applies to "meritorious" issues also, does it not. See, Evitts v. Lucey, 469 U.S. 387, 396-97 (1985); Diaz v. Judge Advocate General of the Navy, 59 M.J. 34, 37 (C.A.A.F. 2003); United States v. Adams, 59 M.J. 367, 370 (C.A.A.F. 2004). This is all well and good when the appellant and appellate counsel are communicating. But what about the uncommunicative appellant, regardless of the reason for a lack of communication? Does United States v. Harper, 80 M.J. 540 (N-M Ct. Crim. App. 2020) (Order) (with no petition to the CAAF), give us any guidance? NMCCA affirmed with a summary disposition in October. See also, United States v. Brown, NMCCA No. 202100042, 2021 CCA LEXIS 283 (N-M Ct. Crim. App. Jun. 10, 2021) (*I couldn't see this order on the NMCCA site); United States v. Stromer, NMCCA No. 201800320, 2020 CCA LEXIS 258 (N-M Ct. Crim. App.Aug. 7, 2020) (Order) (*I couldn't find the Order on the NMCCA site) aff'd United States v. Stromer, 2020 CCA LEXIS 471 (N-M Ct. Crim. App. Dec. 28, 2020). Before we put all the onus on the courts and lawyers, look to the client's "role" in all of this. When there is a written motion to withdraw from an appeal--no problem. But what of the uncommunicative client? Are they noncommunicative out of choice, or because they haven't gotten the "Hi, I'm your appellate lawyer notice," or through some administrative failure? (And they are not in the Brig where it's easy to locate them and talk to them.) Does that make a difference? Should that make a difference? That shouldn't make a difference to the CCA because of duty to review. Is Harper good law for the appellate counsel who wants to withdraw or might CAAF give us Casey's variations on a theme by Harper and resolve any dissonance? Cheers Phil Cave--now off to the bunker to hunker.You have an appellate client who refused trial defense counsel and now refuses to talk with you about his appeal so you can properly represent him. Point being, you cannot form an attorney-client relationship. You may have been appointed as appellate counsel, but until you talk to the client and he accepts your representation there is no A/C--is there? We might find out because of this mysterious journal entry at CAAF. Monday, August 16, 2021 The Google will tell you Casey is a Marine judge advocate. A quick search on the NMCCA website will tell you that he must be assigned to Appellate Defense (Code 45) because his name is on a number of cases. But that is it. The NMCCA website does not have the Order online. This may be an oversight. NMCCA does publish Orders from time to time. As the Spanish might say, ¿donde esta PACER? Update (20/08), with some additional questions, and perhaps more to come:
Ask CAAFlog DeskEd. note. Check out the NMCCA Rivera opinion. Court of Appeals for the Armed ForcesFor those who like to do issue spotting for their trial cases, CAAF has now started to populate the next seasons oral argument schedule. Of use to trial practitioners are the briefs. Air Force Court of Criminal AppealsUnited States v. Chuar. Bad-conduct discharge, confinement for 6 months, and a reprimand. officer members found Appellant guilty of one specification of wrongful use of cocaine and one specification of wrongful use of methamphetamine, both in violation of Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a.1 Appellant elected to be sentenced by a military judge. Appellant raises two assignments of error: (1) whether the military judge erred in failing to exclude statements Appellant made to her mental health provider, pursuant to Mil. R. Evid. 513, and in failing to exclude the derivative evidence obtained as a result of those statements; and (2) whether the military Appellant’s case is before this court a second time. In his initial appeal, on 16 May 2018 Appellant submitted his case on its merits with no assignment of error. However, on 12 September 2018, this court issued a Show Cause Order because a sentencing exhibit, Prosecution Exhibit 7, was missing from the record of trial. No issues were raised on the first appearance at AFCCA. After this court returned the record, the military judge signed a certificate of correction, and the record, now complete, was again docketed with the court. Appellant then moved for leave to file two supplemental assignments of error. First, Appellant claimed unlawful command influence (UCI) in the manner by which the Government corrected the record. Second, Appellant claimed prejudice for the time it took the Government to obtain the certificate of correction from the military judge.
The failure of Government personnel to include Appellant’s EPR, admitted as a prosecution exhibit, was not shown to be anything other than simple negligence. The record yields no reason to believe the omission was intentional, much less deliberate. Cf. United States v. Bavender, No. ACM 39390, 2019 CCA LEXIS 340, at *67, *68 n.28 (A.F. Ct. Crim. App. 23 Aug. 2019) (unpub. op.) (where the Government docketed “[a] plainly deficient record” deliberately omitting evidence on which it relied to convict).  Source: Kyle Rempfer, Army Times.
Read United States v. King, which discusses the assimilation of a NJ incest offense at court-martial. The offense elements are:
"c. An actor is guilty of sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances: ... (3)The victim is at least 16 but less than 18 years old and: (a)The actor is related to the victim by blood or affinity to the third degree...." Title 2C, Chapter 14, Section 2, Subsection (c)(3)(a) of the New Jersey Code of Criminal Justice Since this would punish consensual private sex with someone over the age of consent, shouldn't there have been a Marcum analysis? Maurer on MaurerA Logic of Military Justice? by Dan Maurer is about to be published in 53 Texas Tech L. Rev. 669 (2021). We have invited him to provide the following preview. As with earlier articles (here, here), this article is part of a larger project to encourage the military and lawmakers to reflect seriously on why the military does "justice" the way it does -- why do its idiosyncratic elements (e.g., certain commanders having certain kinds of investigative, prosecutorial, and judicial-like authorities; non-random, hand-picked panels, non-unanimous guilty verdicts) remain in place, while other elements (and other peer nations' MJ systems) continue to "civilianize?" This article first describes Ortiz v. United States, a relatively recent Supreme Court case in which the justices seem to have inadvertently recast the "purpose" of military justice, contradicting its earlier rationale (from, e.g., Parker v. Levy; Orloff v. Willoughby; Burns v. Wilson; and implicit in Solorio) for supporting this unique code of military criminal law. The “purpose” of military justice – as a separate code of criminal prohibitions for a “separate community – used to be about enforcing disciplined obedience to commands in support of mission accomplishment (from the tactical to the national strategic scale). This "national security" rationale allowed the Court to defer to Congress's determination (usually) about the subject matter jurisdiction (except of course for O’Callahan’s now-defunct and unworkable “service connection test”) and various rights/due process established in the Code. The most recent description of military justice in Ortiz, however (and I think partially correctly), says that any value the commander gets from this criminal justice system is incidental to the bigger picture: not national security, but "justice." This case should force us to stop and rethink the claims we (Congress and the military services) make in both defending and criticizing military justice's substance, procedure, consequences, and mistakes. The article's second part undertakes to unpack every expressed and tacit claim in the "logic" underpinning American military justice. Not only does it make them explicit for the first time and all in one place, the article assesses their strength by labeling them as "presumptions," "assumptions," "speculations," "facts," or "normative judgments." Sneak preview of the conclusion: arguments explaining and justifying the current form of military justice rest far more on speculations and assumptions than on facts, and the conclusory "normative judgments" we offer to the public and ourselves are based too often on anecdotal, context-free, "evidence," and result in an argument that looks too much like: "just trust us, we're the professionals." This is a perversion of actual professional expertise and undermines the always fragile “civil-military relationship.” As such, it is not just a matter of reforming (or not) a criminal code; it is also pushing up against what it means to have effective “civilian control” over the military. As a military of volunteers, in non-partisan service to the country and in defense of the Constitution, we must do a better job defining, defending, and reacting to progressive reform, especially if the Code's purpose is doing "justice," just like every other criminal code and system. This article is meant to help, or at least encourage both critics and supporters to be more nuanced, careful, and refined in their arguments. LTC Dan Maurer.Currently Assistant Professor of Law, United States Military Academy at West Point and a Fellow, Modern War Institute. Court of Appeals for the Armed ForcesUnited States v. Hernandez. Appellant was convicted MJA of wrongful use of cocaine. On appeal, AFCCA found the MJ abused his discretion in not suppressing evidence--"Appellee unsuccessfully argued [at trial] that the results of the urinalysis test should be suppressed because the search authorization used to obtain his urine was based on material misstatements and omissions by the law enforcement officers." CAAF (5-0) reverses AFCCA finding there was good faith--the court presumed without deciding no probable cause was given the magistrate when seekinga search authorization. In so holding, the court passed over a waiver issue with the motion to suppress. It is noteworthy that an E-5 was providing the information to the magistrate to get a warrant not an OSI agent. *** CAAF is powering into the end of session with another trailer clean-up. No. 21-0135/AF. U.S. v. D'Andre M. Johnson. CCA 39676. On further consideration of the granted issues (81 M.J. __ (C.A.A.F. April 14, 2021)), and in view of United States v. Willman, 81 M.J. __ (C.A.A.F. July 21, 2021), we note that in its sentence appropriateness review, the United States Air Force Court of Criminal Appeals erred in failing to consider additional information about Appellant's post-trial confinement conditions even though Appellant had raised the matter in his clemency response to the convening authority. Appellate courts may "consider affidavits and gather additional facts through a DuBay hearing when doing so is necessary for resolving issues raised by materials in the record." United States v. Jessie, 79 M.J. 437, 444 (C.A.A.F. 2020). In United States v. Tyler, 81 M.J. 108 (C.A.A.F. 2021), we held that either party may comment on properly admitted unsworn victim statements. Therefore, the military judge did not plainly err in permitting trial counsel to present argument based on the victim's unsworn statement. Accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is affirmed as to findings but reversed as to sentence, and the record of trial is returned to the Judge Advocate General of the Air Force for further review under Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866. Thereafter, Article 67, UCMJ, 10 U.S.C. § 867, shall apply. No. 21-0216/NA. U.S. v. Joseph R. Nelson. CCA 201900239. 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 on the following issue: ARTICLE 31(d), UCMJ REQUIRES SUPPRESSION OF STATEMENTS TAKEN IN VIOLATION OF ARTICLE 31(b). AFTER THE MILITARY JUDGE DETERMINED THAT NCIS AGENTS VIOLATED ARTICLE 31(b) BECAUSE THEIR RIGHTS ADVISEMENT DID NOT PROPERLY ORIENT APPELLANT TO THE NATURE OF THE SUSPECTED MISCONDUCT, DID THE MILITARY JUDGE ERR BY ONLY SUPPRESSING THE STATEMENT AS IT RELATED TO ONE SPECIFIC OFFENSE, BUT THEN ALLOWING THE EVIDENCE TO BE ADMITTED FOR THE REMAINDER OF THE OFFENSES? Air Force Court of Criminal AppealsUnited States v. (not Cab) Calloway. The continuing saga of AF difficulties in post-trial processing continues with the court again remanding to correct the second post-trial action, The new action, coupled with the absence of a new court-martial order that correctly reflects the results of the courtmartial, is not only erroneous and ultra vires, but confusing and misleading. We find remand for corrective action appropriate. United States v. (not Spud) Murphy. In this GP case, Appellant was convicted of using marijuana and using marijuana many times and wrongful possession of marijuana; for which he got 30 days, a BCD, RIR-E2, and forf. United States v. (not Ralph) Nuzzo, III. Appellant was sentenced, by a panel, to 24 months, BCD, and stuff, because he pleaded guilty to "strangling a fellow service member, biting her, and striking her in the face." There was no PTA. The court finds harmless error in the CA failure to take action on the sentence for a pre-2019 case. There are five issues.
United States v. (not Hans Gustav) Steinert. In this GP case, Appellant was sentenced to two-years, a BCD, and stuff, including a reprimand.He pled guilty to five assault and batteries, an orders violation, and the sex offenses were withdrawn. The case is remanded for post-trial error correction and his four other issues deferred until a second visit. United States v. (not Chalky) White. In this NG MJA case Appellant was convicted of aggravated sexual contact and twice using indecent language. He was sentenced to four-months, a BCD, RIR, and a reprimand. His seven issues will await another visit to AFCCA because an eighth got him a remand for post-trial errors. Possible appellate casesUnited States v. SFC R.RN. Charges of violating orders, reckless endangerment, communicating threats, and obstruction of justice have been referred to court-martial. The Article 32, UCMJ, preliminary hearing ended in May. Arraignment is yet to be scheduled. Interestingly, his attorney told Stars & Stripes that “While I can’t go into the facts contained within those investigations yet, I think it’s fair to say that SFC N. was not even in the country at the time two of the charges are alleged to have occurred[.]” United States v. MSG C.M.M. A former Fort Bragg command sergeant major who has since been demoted and allegedly forged documents to retire in the midst of an Army investigation now faces new charges. A trial is set to begin Oct. 11 on the new charges of desertion, failure to obey a regulation, extortion, impeding a sexual investigation and revenge porn, according to an Army trial docket and charge sheet. Worth the readBarnett-Mayotte, Cal, Beyond Strickland Prejudice: Weaver, Batson, and Procedural Default (June 8, 2021). University of Pennsylvania Law Review, Forthcoming, Vol. 170, Forthcoming , Available at SSRN: https://ssrn.com/abstract=3862860. Cheers, Phil CavePhil and I break it down for military.com's lay audience here (this will be basic stuff for CAAFlog readers): Can Service Members Fight Taking a Mandatory COVID Vaccine? Did we miss anything big? Re-reading Sterling made me think that CAAF's exhaustion requirement for the RFRA substantiality prong seems strange analytically. But, as CAAF notes, a number of circuit courts also impose such a requirement. Brenner FissellEIC Ed. notes.
The Supreme Court will not interfere with Indiana University’s vaccine mandate. On Thursday evening, Justice Amy Coney Barrett turned down a request from a group of Indiana University students to block the school’s requirement that students be vaccinated against the virus. Barrett, who is responsible for emergency appeals from Indiana, denied the students’ request without comment, without seeking a response from the state, and without referring the request to the full court for a vote – suggesting that she and the other justices did not regard it as a particularly close case. More from SCOTUSblog here.
"Appeals — Summary Dispositions
No. 21-0130/AF. U.S. v. Clayton W. Turner. CCA 39706. On further consideration of the granted issue (81 M.J. __ (C.A.A.F. March 15, 2021)), and in view of United States v. Willman, 81 M.J. __ (C.A.A.F. July 21, 2021), accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is hereby affirmed. No. 21-0135/AF. U.S. v. D'Andre M. Johnson. CCA 39676. On further consideration of the granted issues (81 M.J. __ (C.A.A.F. April 14, 2021)), and in view of United States v. Willman, 81 M.J. __ (C.A.A.F. July 21, 2021), we note that in its sentence appropriateness review, the United States Air Force Court of Criminal Appeals erred in failing to consider additional information about Appellant's post-trial confinement conditions even though Appellant had raised the matter in his clemency response to the convening authority. Appellate courts may "consider affidavits and gather additional facts through a DuBay hearing when doing so is necessary for resolving issues raised by materials in the record." United States v. Jessie, 79 M.J. 437, 444 (C.A.A.F. 2020). In United States v. Tyler, 81 M.J. 108 (C.A.A.F. 2021), we held that either party may comment on properly admitted unsworn victim statements. Therefore, the military judge did not plainly err in permitting trial counsel to present argument based on the victim's unsworn statement. Accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is affirmed as to findings but reversed as to sentence, and the record of trial is returned to the Judge Advocate General of the Air Force for further review under Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866. Thereafter, Article 67, UCMJ, 10 U.S.C. § 867, shall apply. No. 21-0146/AF. U.S. v. Cory J. Frantz. CCA 39657. On further consideration of the granted issue (81 M.J. __ (C.A.A.F. March 23, 2021)), and in view of United States v. Willman, 81 M.J. __ (C.A.A.F. July 21, 2021), accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is affirmed. No. 21-0243/AF. U.S. v. Derrick O. Williams. CCA 39746. On further consideration of the granted issue (81 M.J. __ (C.A.A.F. June 25, 2021)), and in view of United States v. Willman, 81 M.J. __ (C.A.A.F. July 21, 2021), accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is affirmed. Order Granting Petition for Review No. 21-0216/NA. U.S. v. Joseph R. Nelson. CCA 201900239. 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 on the following issue: ARTICLE 31(d), UCMJ REQUIRES SUPPRESSION OF STATEMENTS TAKEN IN VIOLATION OF ARTICLE 31(b). AFTER THE MILITARY JUDGE DETERMINED THAT NCIS AGENTS VIOLATED ARTICLE 31(b) BECAUSE THEIR RIGHTS ADVISEMENT DID NOT PROPERLY ORIENT APPELLANT TO THE NATURE OF THE SUSPECTED MISCONDUCT, DID THE MILITARY JUDGE ERR BY ONLY SUPPRESSING THE STATEMENT AS IT RELATED TO ONE SPECIFIC OFFENSE, BUT THEN ALLOWING THE EVIDENCE TO BE ADMITTED FOR THE REMAINDER OF THE OFFENSES? Briefs will be filed under Rule 25." |
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