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UP PERISCOPE
Dateline: 30 October 2020 (as of 1200). SUPREME COURT Fed. Dist. Ct. This matter is a petition for habeas corpus filed under 28 U.S.C. § 2241, challenging Petitioner's conviction by general court-martial. At the time of filing, Petitioner was confined at the United States Disciplinary Barracks in Fort Leavenworth, Kansas. This matter is before the Court on Respondent's Motion to Dismiss (Doc. 10) in light of the Petitioner having received a Presidential Pardon. Petitioner has filed a Response (Doc. 13), and Respondent has filed a Reply (Doc. 14). The Court held a hearing on the motion on January 8, 2020, and took the matter under advisement. The Court, determining that Petitioner's acceptance of the Pardon was an admission of his guilt leaving this matter without a case or controversy, finds that the motion should be granted. Note the discussion of whether accepting an unconditional pardon not based on innocence is in fact and admission of guilt. CAAF
There were various discovery issues at trial which caused a mistrial followed by a retrial. The initial NMCCA opinion. In that opinion the only issues raised were a double jeopardy claim and a failure to state an offense claim. However, the interesting issues now are: DID LTCOL KASPYRZK’S SUBSTANTIVE PARTICIPATION INAPPELLANT’S CASE WHILE SIMULTANEOUS LY ALLEGEDLYAPPLYING FOR EMPLOYMENT TO SERVE AS THE PROSECUTION’S EXPERT ADVISOR UNDERMINE THE PUBLIC’S CONFIDENCE IN THE JUDICIAL PROCESS? WERE THE TRIAL AND APPELLATE DEFENSE COUNSELINEFFECTIVE WHERE THEY FAILED TO FILE A MOTION TOCOMPEL THE GOVERNMENT TO PRODUCE REQUESTEDDISCOVERY REGARDING LTCOL KASPYRZK’S ALLEGED CONFLICT OF INTEREST AND FAILED TO RAISE THE ISSUE ONAPPEAL? It is not clear from the remand order if the military judge was applying for a position in the Navy’s version of TCAP. It seems to me based on the Spath Issue, the MJ issue in Bergdahl, and now this case that it’s a necessary voir dire question to the MJ about their retirement status and job prospects. These cases present an unhappy development and something the MJs should be thinking about sua sponte.
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"For nearly two decades, many talented attorneys have represented detainees at Guantanamo Bay. They include advocates at the Military Commissions Defense Organization, professors at more than a few elite law schools, and litigators from scores of the nation’s most prestigious law firms. Some of those attorneys, perhaps most, have shown a prudent appreciation for the fine line separating zealous advocacy from frivolous tactics designed only to delay and disrupt...." Al-Qosi v. United States, No. 20-1195 (D.C. Cir.) (Walker, J.). 
The Military Death Penalty — Capital Punishment Under the Uniform Code of Military Justice Friday, Nov. 13, 2020, 1:00 p.m. Eastern/10:00 a.m. Pacific •Jonathan Potter, Esq., Lieutenant Colonel, USA (Ret.), Chief, Capital and Complex Litigation, U.S. Army Defense Appellate Division •Dwight Sullivan, Esq., Colonel, USMCR (Ret.), civilian counsel, Air Force Appellate Defense Division •Art Cody, Esq., Captain, USN (Ret.), Director, Criminal Programs, Veteran Advocacy Project, moderator
The NMCCA affirmed the findings and sentence of Lance Corporal Tomas Rocha, Jr, finding no prejudicial error. However, the NMCCA ordered correction of the results of trial, that one of the charges of which Appellant was convicted should be characterized as "other sexual misconduct" as opposed to "sexual assault."
Rocha opinion here. Blog post here. Interesting comments below.
Elizabeth BerecinResearch Fellow On Wednesday, October 28, CAAF will hear oral arguments in United States v. Cardenas. The granted issue question is: WHETHER THE ARMY COURT, AFTER FINDING APPELLANT’S CONVICTIONS WERE MULTIPLICIOUS, ERRED IN PERMITTING THE GOVERNMENT TO CHOOSE WHICH OF THE APPELLANT’S CONVICTIONS TO DISMISS ON APPEAL.
Cardenas briefs here. United States v. Henry was originally scheduled to be heard on September 30, 2020, and was rescheduled for tomorrow, October 27, 2020.
CAAF will hear oral arguments in United States v. Henry, a case, whose issue was certified by The Judge Advocate General of the Army. TJAG puts forth this assignment of error to CAAF: DID THE MILITARY JUDGE ABUSE HIS DISCRETION IN EXCLUDING THE FOUR STATEMENTS ON WHICH THE PROSECUTION SOUGHT INTERLOCUTORY APPELLATE REVIEW, PURSUANT TO ARTICLE 62, UCMJ? CAAF briefs here.
Tomorrow, CAAF will hear oral arguments in United States v. Norwood. Appellant’s case is based on two assignments of error: (1) whether the military judge erred in admitting, over defense objection, the entire video-recorded interview of the complaining witness under MRE 801(d)(1)(b)(ii) as a prior consistent statement, and (2) whether the trial counsel’s arguments repeatedly overstepped the bounds of propriety and fairness allowing such misconduct to prejudice MMN1 Norwood.
Norwood briefs here. On Tuesday, October 27, CAAF will hear argument in United States v. Bavender, a case involving the validity of a search warrant. The issue is whether the military judge erred in denying Appellant’s suppression motion.
Bavender briefs here. Link to interview with Military.com here.
The AFCCA affirmed the findings and sentence of Airman First Class Mercilous M. Massillon, finding no prejudicial error in Appellant's two assignments of error.
Massillon opinion here. The AFCCA affirmed the findings and sentence of Major William B. King, finding no error that was materially prejudicial to his substantial rights.
King opinion here. Today, Sgt. Bergdahl filed a writ of coram nobis and a motion to submit extra-record factual matters to ACCA.
Elizabeth BerecinResearch Fellow Dateline: 23 October 2020(as of 1000).
SUPREME COURT CAAF ACCA
On October 26, 2018, this court issued a decision in appellant's case, granting relief in part [and some specifications] were set aside. We then remanded the case and provided the same or different convening authority with three options[]. Of note, We now sua sponte review these matters for further consideration pursuant to an intervening change in law as it applies both to our October 26, 2018 decision and the February 12, 2020 action taken by the convening authority. After this court's October 26, 2018 decision, our superior court issued two opinions that impact our directive to the convening authority. See United States v. Gonzalez, 79 M.J. 466 (C.A.A.F. 2020); United States v. Wall, 79 M.J. 456 (C.A.A.F. 2020). As explained below, we find our October 26, 2018, decision impermissibly impugned appellant's right to appellate review, but in light of the totality of the record, the error warrants no further relief. This court's de novo review of the remaining findings of guilty as affirmed in our October 26, 2018 opinion are REAFFIRMED. The convening ACCA affirmed the findings and sentence of Second Lieutenant Robert J. Sharp (Appellant). Appellant was convicted contrary to his plea, of one specification of sexual assault, in violation of Article 120 UCMJ, 10 U.S.C. § 920. Appellant was sentenced to fourteen months confinement, forfeiture of all pay and allowances and a dismissal. Sharp opinion here. On appeal Appellant argued pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1983), that he was prejudiced by the erroneous admission of the polygraph evidence and that his defense counsel was ineffective for allowing such evidence to be introduced. ACCA after reviewing the record, held that Appellant’s assignments of error merited no relief. ACCA noted that Appellant affirmatively waived any objections to the admission of the polygraph evidence by making no objections to the proffered evidence. Additionally, the Court found that defense counsel’s failure to object was contemplative and not an accident. Even though ACCA found that Appellant waived this error, they still assumed arguendo that the objection was forfeited and not waived. Even assuming that the objection was forfeited, ACCA did not find that the proffered evidence was prejudicial to Appellant. In reaching this conclusion, ACCA noted the overwhelming evidence of Appellant’s guilt, namely his own confession. Regardless of if Appellant’s objection was waived or forfeited, ACCA found that he merited no relief. Peter-Gaye HowellIntern Civil suit against Gen. Hyten (based on sexual assault allegation) survives motion to dismiss10/23/2020 Reuters story here (with commentary from friends of CAAFlog Steve Vladeck and Don Christensen): In rare move, U.S. federal court allows military sexual assault case to continue Here is the district court order:
Update: After some research, it is clear that this is not Hasan's first time appealing to CAAF. However, it does not appear that Hasan is actually appealing, rather it is his appellate defense counsel. At Hasan's trial, the military judge sealed materials as privileged between Hasan and his standby counsel. Normally, appellate defense counsel would be able to review those materials without judicial intervention, however, Hasan will not authorize access. Given this background and two writs being filed with CAAF, it is highly likely that appellate defense counsel is once again trying to gain access to Hasan's trial materials. "No. 21-0015/AR. Nidal M. Hasan, Petitioner v. United States Army Court of Criminal Appeals, Respondent and United States, Real Party In Interest. CCA 20130781. Notice is given that a petition for extraordinary relief in the nature of a writ of mandamus and brief in support were filed under Rule 27(a), on this date." Note: Hasan also filed a writ of prohibition earlier this month. Elizabeth BerecinResearch Fellow The below case makes me wonder what the administrative remedy process actually looks like for conditions of confinement claims. Has anyone represented a client in such a matter? A Westlaw search for these cases in the 10th Circuit and D. Kansas (where Leavenworth is) reveals only 9 reported cases that made it to federal court, and in many of them the case is dismissed for failure to exhaust. Brenner FissellEIC ACCA affirmed the findings and conviction of PFC Donald P. Laviolet. (Appellant). Appellant was convicted, in accordance with his pleas, of one specification of violation of a lawful general order, three specifications of assault consummated by a battery, one specification of assault upon a person in the execution of law enforcement duties, and one specification of disorderly conduct, in violation of Articles 92, 128, and 134, UCMJ. The military judge sentenced Appellant to a reduction to the grade of E-1, eleven months confinement, and a bad-conduct discharge.
LaViolet opinion case. There is a report of SGT Hatley being released from prison after 11 years confinement. The Army Times is reporting that SGT Hatley's release was possible after becoming eligible for parole last year. Notably, SGT Hartley was only eligible for parole because his original life sentence was reduced. The ACCA’s 2011 opinion is here. An enlisted panel sitting as a general court-martial convicted appellant, contrary to his pleas, of conspiracy to commit premeditated murder and premeditated murder, in violation of Articles 81 and 118, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 881 and 918. Appellant was acquitted of an additional offense of premeditated murder and obstruction of justice. The court sentenced appellant to reduction to the grade of E-1; forfeiture of all pay and allowances; confinement for life (with eligibility for parole); and a dishonorable discharge. See United States v. Hatley, No. 20090329, 2011 CCA LEXIS 124, rev. denied 71 M.J. 93 (C.A.A.F. 2012), cert. denied 568 U.S. 889 (2012). Any additional information welcome. Phil CaveMJ Editor The AFCCA affirmed the findings and sentence of Airman Austin L. Wilson, finding error but no material prejudice to Appellant’s substantial rights.
Appellant was convicted, pursuant to his pleas, of four specifications of wrongful use of controlled substances and three specifications of wrongful distribution of controlled substances, in violation of Article 112a, UCMJ. Officer members sentenced Appellant to a bad-conduct discharge, confinement for four months, forfeiture of $819.00 pay per month for four months, and reduction to the grade of E-1. The convening authority approved the sentence, but granted credit for 16 days of confinement, $125.00 of pay forfeiture per month for four months, and a one-grade reduction. Wilson opinion here. The AFCCA affirmed the findings and sentence of SSGT Lawrence J.D. Bowman, finding no error materially prejudicial to his substantial rights.
Appellant was convicted, contrary to his pleas, of two specifications of attempted sexual abuse of a child on divers occasions in violation of Article 80, UCMJ. The court-martial sentenced Appellant to a dishonorable discharge, confinement for one year, forfeiture of all pay and allowances, and reduction to the grade of E-1. The convening authority approved the sentence. Bowman opinion here. |
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