On Tuesday November 17, 2020, CAAF will hear oral arguments in
United States v. Scott
CAAF granted review on the following issue: WHETHER APPELLANT HAD RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL IN THE PRESENTENCING PHASE OF HIS TRIAL.
CAAF briefs here.
On Tuesday, November 17, 2020, CAAF will hear oral arguments in United States v. Guinn. The issue on review is:
WHETHER THE ARMY COURT CONDUCTED A VALID ARTICLE 66 REVIEW WHEN IT FAILED TO CONSIDER APPELLANT’S FIRST AND FIFTH AMENDMENT CLAIMS EVEN WHILE ENTERTAINING HIS EIGHTH AMENDMENT CLAIMS.
CAAF briefs here.
On remand, ACCA set aside Colonel Robert J. Rice's findings and sentence.
Rice opinion here.
The AFCCA affirmed the findings and sentence of Cadet Ethan J. Walton, finding no error materially prejudicial to his substantial rights.
Walton opinion here.
Dwight Sullivan and Jonathan Potter gave an impressive lecture on the death penalty in the military yesterday. Three questions from the audience were intriguing and may be of interest to readers here:
1. Potter noted that only a large command will attempt to pursue a capital case because only a large command has the resources to do so. The audience wondered whether this would give rise to some sort of legal claim (probably Equal Protection?). [A thought: is this also true of other prosecution decisions, and if so, does it weigh in favor of centralizing disposition authority?]
2. Why are all of the current death row inmates in the military from the Army?
3. If there are so few capital cases, how would it be possible for a military JAG to become learned counsel given the requirement of second-chairing a previous capital case?
Dateline: 13 November 2020 (as of 1000); a summary of the week’s events.
United States v. Bess, 80 M.J. 1 (C.A.A.F. 2020).
United States v. Bess, 74 M.J. 70 (C.A.A.F. 2016).
United States v. Bess, No. 201300311, 2018 CCA LEXIS 476 (N-M. Ct. Crim. App. Oct. 4, 2018) (unpub.).
The QP: (1) Whether 10 U.S.C. § 825, which allows a military commander to hand select members to sit on a general court-martial panel, as applied in Pedro Bess’ case — in which an all-white panel convicted a Black defendant of sexual misconduct against a white woman — violates the Fifth Amendment; and (2) whether the lower court erred in declining to remand Bess' case for additional factfinding.
The NMCCA upheld the conviction and affirmed the findings and sentence of Bradley M. Metz (Appellant). Pursuant to his pleas, Appellant was convicted of one specification of making a false official statement and one specification of obstruction of justice under Articles 107 and 134, UCMJ.
LawProf twitter is currently debating the propriety of a recent announcement by The Lincoln Project to shame Jones Day for representing the PA GOP in its election related litigation. In my view this is wrong, and further erodes the ever-weakening "non-endorsement" principle of legal representation: "A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities." ABA Model Rule of Prof. Conduct 1.2. The principle exists for obvious reasons, and takes on an especially important character in the practice of criminal law. If not for the non-endorsement principle, lawyers representing clearly guilty criminal defendants could be said to be "endorsing" the criminal conduct, with the result that no lawyers would agree to take on such a representation. A society that holds that legal representation in a criminal trial is a crucial bulwark against the oppressive use of government power, then, would accept the non-endorsement principle (at least for criminal cases). One of the unique and valuable aspects of the military justice bar is that it seems to take this seriously--lawyers are not "judged" or "shamed" for their client selection. Perhaps this is because uniformed lawyers are assigned/detailed to one side or the other, and they are often detailed to the opposite side at a later point. JAG resumes often read like this, and it is a good thing.
In the civilian criminal law bar--especially in large cities--public defender and district attorney offices have morphed into armed camps, each erecting professional walls preventing any flow of personnel either way. Unfortunately, many professors must now advise even 1L students to choose all their internships carefully so as not to signal disloyalty to the "side" they hope to work for in the end. This is not good for our profession.
The LawProf twitter debate on this issue led to the surfacing of someone who once ran afoul of the non-endorsement rule in the context of Guantanamo detainees: Cully Stimson at the Heritage Foundation. He noted that he eventually signed on to a 2010 Brookings Institute letter reaffirming the principle.
Appellant was convicted, in accordance with a plea agreement, of desertion and sentenced to a bad-conduct discharge, 57 days of confinement, reduction to the grade of E-1, and a reprimand. On appeal, Appellant argues that his due process rights were violated when his case was not docketed with this court within 30 days of the convening authority's action. Finding no error or violation, the judgment was Affirmed.
Appellant’s trial concluded on April 2, 2019. On April 19, 2019, the military judge signed the decision in Appellant’s case. On July 2, 2019, the entry of judgment was signed. On July 3, 2019, the court reporter certified the record of trial (ROT). Due to some delay, the ROT was received by Appellant on September 13, 2019 and on September 19, 2019, the ROT was docketed with the court. At no time during this process did Appellant object to the delay or assert his right to timely review prior to April 22, 2020.
"No. 20-0294/AF. U.S. v. Ryan M. Vanvalkenburgh. CCA 39571. On further consideration of the granted issues and the briefs of the parties, we conclude that Appellant forfeited his challenge to the constitutionality of Rule for Courts-Martial (R.C.M.) 912(f)(4) and that Appellant has not established plain error. We have determined that Appellant did not waive his constitutional challenge to R.C.M. 912(f)(4) by intentionally relinquishing a known right. We do not consider the possibility that the constitutional challenge was waived by operation of law under R.C.M. 905(e) or any other R.C.M. provision because the Government has not made this argument. Accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is hereby affirmed."
(4) Waiver. The grounds for challenge in subparagraph (f)(1)(A) of this rule may not be waived. Notwithstanding the absence of a challenge or waiver of a challenge by the parties, the military judge may, in the interest of justice, excuse a member against whom a challenge for cause would lie. When a challenge for cause has been denied, the successful use of a peremptory challenge by either party, excusing the challenged member from further participation in the court-martial, shall preclude further consideration of the challenge of that excused member upon later review. Further, failure by the challenging party to exercise a peremptory challenge against any member shall constitute waiver of further consideration of the challenge upon later review.
"No. 21-0042/AR. U.S. v. Danny L. McPherson. CCA 20180214. Notice is given that a certificate for review of the decision of the United States Army Court of Criminal Appeals was filed under Rule 22 on this date on the following issue:
DID THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS ERR WHEN IT DISMISSED THE SPECIFICATIONS IN CHARGE I ON THE GROUNDS THAT THE STATUTE OF LIMITATIONS HAD EXPIRED?"
Read the ACCA opinion here.
Dateline: 6 November 2020 (as of 1000); a summary of the week’s events.
Once again, an appellate court grant on a Grosty issue. There is no ACCA opinion on their website so we could assume a summary disposition. The ACCA does not publish summary dispositions unlike NMCCA.
The AFCCA affirmed Staff Sergeant Brian M. Schmitt’s findings and sentence, holding that the conviction was factually and legally sufficient and that his dishonorable discharge was an appropriate punishment.
Schmitt opinion here.
"No. 20-0345/AR. U.S. v. Jacob L. Brubaker-Escobar. CCA 20190618. 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 personally asserted issue:
WHETHER THE CONVENING AUTHORITY'S FAILURE TO TAKE ACTION ON THE SENTENCE AS A RESULT OF THE STAFF JUDGE ADVOCATE'S ERRONEOUS ADVICE DEPRIVED THE ARMY COURT OF JURISDICTION UNDER ARTICLE 66, UCMJ.
Briefs will be filed under Rule 25."
ACCA affirmed the findings and sentence of Specialist Erick I. Nuno, finding that he was not deprived of his Sixth Amendment right to confront his accuser.
Nuno opinion here.
ACCA affirmed the findings and sentence of Sergeant First Class Alan D. Ross, finding no error prejudicial to Appellant.
Ross opinion here.
ACCA affirmed Staff Sergeant Danny L. McPherson’s findings of guilt and sentence but set aside and dismissedCharge I and its specifications. Contrary to his pleas, a military judge sitting as a general court-martial convicted Appellant of six specifications of indecent acts or libertiesthat occurred in 2004, against his then ten-year-old biological daughter (KR) in violation of Article 134, UCMJ. Appellant was sentenced to a dishonorable discharge, confinement for 15 years, and a reduction to the grade of E-1.On appeal, ACCA set aside and dismissed Charge I and its specifications because they were time-barred. However, ACCA affirmed Appellant’s remaining findings of guilt and sentence.
McPherson opinion here.
The Committee's conclusions after studying one year of cases:
-Current Term Opinions
Joint R. App. Pro.
Global MJ Reform
LOC Mil. Law