The report of the U.S. Court of Appeals for the Armed Forces for the October 2020 Term (which ended on September 30, 2021) is now available online.
Court of Appeals for the Armed Forces
United States v. Bench. The court has granted an issue.
Whether Lying To A Witness About Appellant's Presence In The Courtroom To Secure Testimony Materially Prejudices Appellant's Sixth Amendment Right To Confrontation.
A panel convicted Appellant of 2x sex abuse of a child and 1x indecent conduct. They sentenced him to 12 years, TF, RiR2E4, DD.
Before AFCCA, and
On appeal, Appellant raises five assignments of error: (1) whether the military judge erred when he admitted statements of a minor child to a therapist; (2) whether Specification 3 of Charge I (alleging sexual abuse of BC) is factually and legally sufficient; (3) whether the record sufficiently demonstrates compliance with Mil. R. Evid. 603 for one child witness, EC; (4) whether the Specification of Charge II (alleging indecent conduct) is factually and legally sufficient; and (5) whether the sentence is unduly severe. As we rely on the same law and standard for issues (2) and (4), we combine the issues into one analysis. We also consider facially unreasonable appellate delay as this opinion was released more than 18 months after docketing.
I don't see anything in the AFCCA opinion related to the granted issue.
Just yesterday some of us asked the question whether the "war" was over and if so, so what.
Abu Zubaydah, the Guantánamo detainee who was tortured close to death by the CIA and who has been held without charge by the US for nearly 20 years, has petitioned a federal court for his release on grounds that America’s wars in Afghanistan and with al-Qaida are over.
Ed Pilkington, ‘Enemy combatant’ held at Guantánamo petitions for release because war is over. The Guardian, Dec. 3, 2021.
On January 1, 2021, the “William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021” became law. Section 554 of the NDAA, “Inspector General Oversight of Diversity and Inclusion in Department of Defense; Supremacist, Extremist, or Criminal Gang Activity in the Armed Forces,” established oversight requirements for programs that are essential to the effectiveness of the DoD, the safety of its military and civilian personnel, and the trust in which it is held by the American people. Section 554(b) requires the Secretary of Defense (SecDef) to establish standard policies, processes, mechanisms, and reporting requirements for prohibited activities, and to submit an annual report to the appropriate congressional committees detailing the implementation of Section 554(b) requirements.
Ten members of the Air Force were investigated for trespassing at the U.S. Capitol during the Jan. 6 pro-Trump riot that briefly shut down Congress, according to new extremism statistics released in a Defense Department inspector general report.
Konstantin Toropin and Travis Tritten, 10 Airmen Investigated for Trespassing at Capitol Riot, New Military Extremism Report Shows. Military.com, Dec. 2, 2021.
Some key points of the report.
From the conclusion.
Although the DoD has not yet issued standard, DoD-wide policy, the DoD has taken the initial steps to fulfill Section 554 requirements. The DoD is in the process of defining extremist activity and updating DoD Instruction 1325.06, which will provide guidance for handling prohibited activities by members of the Armed Forces. A clear definition of extremism reflected in the updated DoD Instruction will enable the Military Departments to identify, track, and report allegations of prohibited activities as required by Section 554.
"As either an authority on civilian protections in urban warfare, or as a commander’s reference for conducting such operations, I regret to report that, in my opinion, this ICRC Handbook is poorly conceived and lacks trustworthy guidance appropriate to its subject."
Read the full review here, of the ICRC's Reducing Civilian Harm in Urban Warfare: A Commander’s Handbook
Comment: As the editor of a book review journal, it is always refreshing to read a trenchant review that does not merely summarize and praise the author.
Yesterday. I read Geoff Ziezulewicz's article, Family of sailor who died by suicide in brig appeals Navy’s denial of medical negligence claim. Navy Times, Nov. 30, 2021.
I had a flashback to one client from almost 20 years ago. Some might say he killed himself for a stupid reason. That would be a "rational" thought perhaps. He had been back at the USDB several weeks when I got the MJ's findings and conclusions from a Dubay hearing. I was mildly ecstatic because there was a good chance ACCA would grant a new trial, so I promptly mailed everything to the client. When the client went to the mailroom to get the letter they refused to give it over. He reacted very badly by grabbing a pencil and stabbing himself in the hand. That got him moved to the SHU where shortly after, he hanged himself.
If you practice long enough, there is a good chance of an accused committing suicide, being stopped in the act, or seriously thinking about it.
A lot of attention has rightly been given to the issue of military suicides and their prevention. For complaining witnesses that's a big part of their program. But I wonder if we give sufficient attention to the mental health and stresses on the accused, especially those who may already have a "history" of mental health issues. In some cases it might be easy to simply to suggest a diagnosis of anxiety due to legal proceedings, but in others?
There are two earlier comments of mine on this subject; Jan. 16, 2010 and Feb. 5, 2010.
Let me say that over the years I have come across many leaders who care and are concerned about the potential mental health and suicide issues with those accused.
Last night I had reread United States v. Nelson. It is worth the read within a larger context as a moment of learning and reflection.
I'm asking you to be sensitive about what may be going on in the accused's mind and to be alert to potential mental health issues. Some issues may be relevant to the case and certainly relevant to a life.
A modest proposal. Many years ago now, at what was then NLSO Norfolk, the government was concerned about the number of R.C.M. 706 requests--they are time consuming and a "burden." So the STC and I got together and developed an in-house "R.C.M. 706A" evaluation, coordinated with the clinic. We agreed that a referral to mental health after preferral would be treated as privileged under the real R.C.M. 706. It was a little more complex than that in operation. But the number of 706 requests went down, there was a better screening mechanism to justify a real 706, and concerns about the accused's mental health were identified and addressed.
This might be done as a modification to the rules on command directed mental health evaluations or through an R.C.M. 706A.
Some final comment on the issue of bi-polar disorder as a defense.
Appellant points to our decisions in United States v. Martin, 56 M.J. 97 (C.A.A.F. 2001), and Harris, 61 M.J. at 391, for the proposition that "[t]he military judge must have known that a bipolar disorder was a viable defense for Appellant." However, these cases establish that bipolar disorder, like other disorders, may exist with enough severity to raise a substantial question regarding the issue of the accused's mental responsibility. However, the disorder does not negate responsibility in all cases. Martin was a contested case in which the defense was attempting to carry its burden of proving lack of mental responsibility due to the severity of the accused's bipolar condition. 56 M.J. at 100-01. Two defense psychiatrists testified that Martin's condition was severe enough that he was unable to appreciate the nature and quality or wrongfulness of his conduct. Id. Conversely, three government psychiatrists testified that Martin could appreciate the wrongfulness of his acts at the time of the offenses. Id. at 101. The question was whether Martin had carried his burden in proving the defense of lack of mental responsibility by clear and convincing evidence, and we concluded that a reasonable jury could have concluded that he did not. Id. at 110.
United States v. Shaw, 64 M.J. 460, 463 (C.A.A.F. 2007).
There is no premium placed upon lay opinion as opposed to expert opinion, nor on “objective” as opposed to “subjective” evidence. Thus, the court below applied an improper test by requiring “clear and convincing objective evidence, not merely subjective medical opinion” of a lack of mental capacity.”
United States v. Dubose, 47 MJ 386, 388-89 (C.A.A.F. 1998).
The CAAF considers that the LMR affirmative defense enjoys a “special status,” which “in part reflects the recognition that combat and other operational conditions may generate or aggravate certain mental health conditions, such as post-traumatic stress disorder.” 64 M.J. at 462. “Historically [the court] has given preferential treatment [to the defense of LMR] even though the matter was not litigated at trial.” United States v. Navarette, 79 M.J. 123, 129 (C.A.A.F. 2021) (Stucky, C.J., dissenting).
Write something about yourself. No need to be fancy, just an overview.
-Current Term Opinions
Joint R. App. Pro.
Global MJ Reform
LOC Mil. Law