Court of Appeals for the Armed ForcesBroadly speaking, Military Rule of Evidence (M.R.E.) 513(a) establishes a privilege that allows a patient to refuse to disclose confidential communications between the patient and his or her psychotherapist if those communications were made for the purpose of diagnosing or treating the patient’s mental or emotional condition. M.R.E. 513(d)(3) creates an exception to that privilege when a service regulation or state or federal law imposes a duty on the psychotherapist to report certain information derived from those communications, such as when the patient alleges child sexual abuse. We hold that this “duty-to-report” exception makes discoverable the information that was required to be reported to state authorities. We also hold, however, that the “duty-to-report” exception, standing alone, does not make discoverable the underlying confidential communications between the patient and the psychotherapist. In the instant case, we conclude that the lower court properly construed the psychotherapist-patient privilege and its exceptions, and that the military judge acted within his discretion in denying Appellant’s request for in camera review of the victim’s psychiatric records. We also conclude that Appellant was not denied the effective assistance of counsel. We therefore affirm the judgment of the United States Navy-Marine Corps Court of Criminal Appeals (NMCCA). Air Force Court of Criminal AppealsUnited States v. Barnes. GP to wrongful use of drugs and theft of military property. He was sentenced to three months, a Dismissal, and a reprimand. This is his second appearance after correction of post-trial errors. He had raised two issues of IAC. The court summarily affirmed the findings and sentence. The initial decision is here. United States v. Mcalhaney. GP to wrongful receipt of CP and possession and viewing of CP. He was sentenced to three months, a BCD, and a reprimand. There were two post-trial errors raised, and "whether an improper reprimand in Appellant’s case made his sentence inappropriately severe." He argues partly that "the reprimand issued by the convening authority is “unduly severe, inflammatory, inaccurate, and unsupported by the evidence in the record” and, consequently inappropriate and substantially prejudicial. Finding no error or prejudice the findings and sentence were affirmed. United States v. Mathis. GP to using drugs, DUI, and under age drinking, for which he was sentenced to 8 months, TF, RiR, and a BCD. Appellant raises two issues on appeal. The first is whether trial counsel’s sentencing argument was improper. The second is whether Appellant’s sentence was inappropriately severe. Of the three instances of alleged improper argument, the second and third drew this comment from the court, This is a close call in light of the CAAF’s conclusion in Hardison that recruitment documents pertaining to drug policy are generally not admissible as evidence in aggravation, and we encourage trial counsel not to push the limits on this front. If evidence that an accused signed an acknowledgement regarding a service drug-abuse policy is inadmissible as evidence in aggravation, the corollary would seem to be that it is inadmissible to argue that such evidence amounts to an aggravating factor warranting a higher sentence. United States v. Lowe. GP to an A&B on his spouse and divers A&B on spouse (a to be covered offense), for which he was sentenced to 60 days, RiR, and a BCD. The sole, Grosty, issue was IAC for failing to present and argue the appellant's PTSD diagnosis. It may not have been helpful that, Air Force investigators conducted interviews with Appellant’s family, co-workers, supervisors, and instructors, and found that Appellant had provided false information to his mental health providers regarding some of his experiences. Pending Appellate CasesUnited States v. Richard. Hope Hedge Seck, Coast Guard petty officer sentenced to six years in prison for daughter's crib death in Kodiak. Anchorage Daily News, February 11, 2022.
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United States Supreme CourtDo you have a medical provider accused of writing prescriptions unlawfully? The court has granted a petition on the following issue in Kahn v. United States, Whether a physician alleged to have prescribed controlled substances outside the usual course of professional practice may be convicted of unlawful distribution under 21 U.S.C. § 841(a)(1) without regard to whether, in good faith, he “reasonably believed” or “subjectively intended” that his prescriptions fall within that course of professional practice. Court of Appeals for the Armed ForcesUnited States v. Guyton. CJ Ohlson writes for himself and three others, with Sr. J. Cox dissenting in part but concurring in the judgment. This is an R.C.M. 707 and Sixth Amendment speedy trial case, focused on Army trial Rule 1.1 which automatically grants excludable delay between the time the case is docketed with the judiciary and arraignment. The granted issues in this case present two questions: (1) whether the Government violated Appellant’s right to a speedy trial under either Rule for Courts-Martial (R.C.M.) 707 or the Sixth Amendment of the United States Constitution; and (2) whether the United States Army Court of Criminal Appeals (CCA) erred by affirming a portion of Appellant’s sentence that had not been approved by the convening authority. We hold that there was no speedy trial violation here because the military judge did not abuse his discretion when he ruled that certain days were excludable for speedy trial purposes under R.C.M. 707, and he did not err when he ruled that Appellant could not prevail on his Sixth Amendment claim because Appellant demonstrated no prejudice pursuant to an analysis under Barker v. Wingo, 407 U.S. 514 (1972). However, we further hold that the CCA erred in affirming a sentence of forfeiture of all pay and allowances because the convening authority had not approved that particular portion of Appellant’s sentence. While finding in favor of Appellant on three Barker factors, the court again stresses that there must be actual prejudice. See Anderson, a post-trial delay case. United States v. Anderson. United States v. Anderson. Appellant requests that this Court determine whether his due process right to speedy post-trial review has been denied. After assessing the relevant factors, we conclude that Appellant’s due process rights have not been violated. A total of 497 days elapsed between the end of trial and the convening authority approving the sentence. Both parties agree that sixteen of those days are attributable to defense counsel’s review of the record, leaving 481 days of Government delay. The trial transcript was 635 pages long and included nineteen prosecution exhibits, eight defense exhibits, and thirty three appellate exhibits. Some comments received.
United States v. Simmons. (Note this is a 2016 MCM case.) A general court-martial consisting of officer members convicted Appellant of four specifications of sexual assault of a child, one specification of extortion, and one specification of producing child pornography. Appellant was sentenced to a dishonorable discharge, confinement for twelve years, forfeiture of all pay and allowances, and reduction to E-1. The granted 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. The court decided that, We answer the granted issue in the affirmative. Specifically, we hold that under the totality of the circumstances presented here, enlarging the charged time frame of one of the offenses by 279 days—after arraignment and over defense objection—was “likely to mislead the accused as to the offenses charged.” Rules for Courts-Martial (R.C.M.) 603(a). 1 This amendment to the charge sheet thus constituted a “[m]ajor change” which the Government was not authorized to make without withdrawing, amending, and preferring the specification anew. R.C.M. 603(a), (d). Because the Government failed to take these required steps, the decision of the CCA is reversed as to the Specification of Charge II and as to the sentence. Judges Maggs and Hardy dissented. No. 21-0325/AR. U.S. v. Leeroy M. Sigrah. CCA 20190556. 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 MILITARY JUDGE'S DENIAL OF APPELLANT'S R.C.M. 914 MOTIONS MATERIALLY PREJUDICED APPELLANT'S SUBSTANTIAL RIGHTS. ACCA opinion here. Note the decision is dated in June 2021. The issues at ACCA were the motion to strike testimony and Brady violations. The court agreed that the MJ erred in the Mil. R. Evid. 914 ruling, but it was not prejudicial but found the Brady issue waived. No. 22-0091/AF. U.S. v. Javon C. Richard. CCA 39918. 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 EVIDENCE OF PREJUDICE TO GOOD ORDER AND DISCIPLINE FOR THE ARTICLE 134, UCMJ, OFFENSES WAS LEGALLY SUFFICIENT. Air Force Court of Criminal AppealsUnited States v. Davis. A GP case in which Appellant was convicted of using marijuana, cocaine, and LSD, and also wrongfully obtaining and distributing the names and social security numbers of other airmen. He was sentenced to 210 days and a BCD. This is a second visit after remand for post-trial issues. The issue then left to decide was unreasonable post-trial delay. Finding no prejudice the findings and sentence were affirmed. The original opinion is here.
Court of Appeals for the Armed ForcesUnited States v. Schmidt. Does a child victim of "indecent conduct by intentionally masturbating in his presence." I think the question is whether the child has to be aware of the acts. The factual issue here being that the child was allegedly asleep. The members themselves wanted to know this in the context of what does "in the presence of mean." Of course part of the issue was about the instructions, lack of instructions, and waiver. The court concluded that they should review for plain error. In Davis, we noted that we review a matter for plain error “ ‘when there is a new rule of law, when the law was previously unsettled, and when the [trial court] reached a decision contrary to a subsequent rule.’ ” 79 M.J. at 331 (first alteration in original removed) (second alteration in original) (quoting United States v. Oliver, 76 M.J. 271, 274 (C.A.A.F. 2017)). At the time of Appellant’s trial, it was unsettled whether the phrase “in the presence of” used to define the term “lewd act” in Article 120b(h)(5)(D), UCMJ, required the child to be aware of the lewd act. The statute did not define “in the presence of” and there was no case law interpreting this phrase in Article 120b(h)(5)(D), UCMJ. Thus, there was no binding precedent demonstrating that “in the presence of” required victim awareness. Accordingly, trial defense counsel’s failure to object was not waiver given the unsettled nature of the law at the time of Appellant’s court-martial. Observers have pointed out that,
United States v. Anderson. GP to UA (AWOL) and use of marijuana, and conviction of sexual assault. He was sentenced to 30 months, RiR, and a DD. The issue was denial of post-trial speedy review. 481 days elapsed between the close of trial and the CA action. The court finds sufficient information to trigger a Moreno review, but not enough to show prejudice. Some comments.
No. 22-0066/AR. U.S. v. Ethen D. Black. CCA 20210310. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2018), it is ordered that said petition is granted on the following issue: WHETHER THE ARMY COURT ERRED IN ITS ABUSE OF DISCRETION ANALYSIS BY (1) CREATING A NOVEL TEST FOR COMMON AUTHORITY, (2) FAILING TO GIVE DEFERENCE TO THE MILITARY JUDGE'S FINDINGS, (3) COMPARING A MODERN CELL PHONE TO A TRADITIONAL "CONTAINER," AND (4) FINDING ERROR BASED ON A DIFFERENCE OF OPINION. Pursuant to C.A.A.F. R. 19(a)(7)(A), no further pleadings will be filed. Navy-Marine Corps Court of Criminal AppealsUnited States v. Murphy. An enlisted panel convicted Appellant of abusive sexual contact of his sister-in-law. They sentenced him to xim months, TF, RiR, and a BCD. On appeal he raised factual sufficiency. The manner in which this case was prosecuted invites more questions than were answered regarding this particular offense, and causes this Court to find the evidence insufficient to support a conviction. Appellant’s conviction for abusive sexual contact essentially rests on the testimony of Ms. Sierra and Mrs. Mike, which is conflicting in a number of material areas and also presents significant credibility issues. We are therefore not convinced beyond a reasonable doubt that Appellant committed abusive sexual contact upon Ms. Sierra by touching, directly or through the clothing, her genitalia. Cheers, Phil CaveAir Force Court of Criminal AppealsUnited States v. Leach. Appellant pled guilty to two A&B. He was sentenced to 10 months, RiR, and a BCD. The case is back after correction of post-trial errors. The sole issue was whether the MJ erred in admitting various recorded phone calls made by Appellant while confined in the Charleston Brig. The recordings tended to rebut his in-court statements of remorse. Finding the recordings properly authenticated, relevant, and not objectionable hearsay the findings and sentence are approved. United States v. Dodson. Appellant pled guilty to dereliction, disobedience of an order, use of cocaine, use of MDMA, on incident of domestic violence, and extramarital conduct. He was sentenced to 10 months, RiR. There were four issues and one specified.
We are not persuaded by Appellant’s contentions that his administrative discharge from the United States Air Force violated his due process rights to a “meaningful” direct appeal, or that this court no longer retains jurisdiction over his conviction and sentence because he was administratively separated prior to our completion of review of his direct appeal. Finding no prejudice, the court affirms the findings and sentence.
U. S. Supreme CourtHere is a link to a SCOTUSBlog review of Hemphill. I was particularly interested in the last paragraph about confrontation at suppression hearings and during sentencing. The 8th has addressed confrontation during a suppression hearing. United States v. Thompson, 2008 U.S. App. LEXIS 15389 (8th Cir. Jul. 21, 2008). See also United States v. Boyce, 797 F.2d 691, 693 (8th Cir. 1986) (quoting United States v. Raddatz, 447 U.S. 667, 679 (1980)). In United States v. McDonald, 55 M.J. 173 (C.A.A.F. 2001), the court ruled that there is no right of Sixth Amendment confrontation during a non-capital case sentencing hearing. C.A.A.F. cites a number of federal circuit cases including United States v. Wise, 976 F.2d 393, 401 and n.3 (8th Cir. 1992) (en banc), cert. denied, 507 U.S. 989 (1993). The granted issue in McDonald was WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE SIXTH AMENDMENT'S CONFRONTATION CLAUSE DOES NOT APPLY TO THE PRESENTENCING PORTION OF A COURT-MARTIAL, CONTRARY TO THIS COURT'S DECISION IN UNITED STATES V. GEORGE, 52 M.J. 259 (2000). 55 M.J. at 174. However, under Williams, the Due Process Clause requires that the evidence introduced in sentencing meet minimum standards of reliability. Those requirements were met here. There is no evidence to suggest that the victim's father's testimony was unreliable or his identity questioned. Additionally, there was notice to the defense, right to counsel, right of cross-examination, and a presentation of the evidence by telephone to the judge as the sentencing authority. The record establishes that the "practical difficulties of producing a witness," including the cost and timing, were such that the judge did not abuse his discretion in allowing the victim's father's testimony to be taken by telephone. Cf. United States v. Hill, 4 M.J. 33, 37 n.18 (CMA 1977). See also United States v. Rich, 12 M.J. 661, 663 n.3 (ACMR 1981). In any event, any error in this case was harmless. We do not suggest that telephone testimony is appropriate in all cases. Manual guidance to the military judge during sentencing is sufficient to ensure the proper balance between obtaining needed testimony and safeguarding rights of the accused. 55 M.J. at 177-78. The question then becomes finding the left and right limits of "confrontation" at sentencing as a due process concern.
McDonald rests on several points of military practice which includes notice of sentencing evidence and the opportunity to present evidence. But, the military is different than civilian jurisdictions. Sentencing comes immediately after the findings of guilty. There is no delay of weeks or months between the two events which means there is often little time to properly investigate and prepare rebuttal to prosecution evidence. While R.C.M. 701(a)(5) requires government disclosure of sentencing evidence upon request, how common or uncommon is it for the prosecution to provide timely notice so the defense has the opportunity to investigate and perhaps find rebuttal evidence? Tenth Circuit Court of AppealsThis appeal raises one issue: whether, under 18 U.S.C. § 3553(a), it is unreasonable for a district court to impose a harsher sentence based on a defendant’s decision to plead guilty without a plea agreement. For the reasons explained below, we hold that it is. The judge gave a middle range sentence, even though the "facts" likely warranted a lower sentence. The accused had rejected a plea offer but pled guilty anyway. The government argued for a lower sentence which was their plea offer. The judge however, said, I think sometimes there’s sort of an implicit assumption that an individual is entitled to a sentence at the low end of the guideline range, but there is, of course, no such right. And, in practice, one of the factors I’ve used to lean against a low-end guideline range are defendants who submit a plea without a plea agreement, without the agreements that typically happen in a plea agreement. Seems to me as we move forward with applying the NDAA sentencing changes we will be referring more to federal district court cases? So here is the nub of the case, perhaps for the future? We review a defendant’s sentence “for reasonableness under an abuse-of-discretion standard,” which applies whether the sentence falls inside or outside of the guideline range. United States v. Henson, 9 F.4th 1258, 1284 (10th Cir. 2021) (quoting Peugh v. United States, 569 U.S. 530, 537 (2013)). The reasonableness of a sentence includes a procedural component, which relates to the method by which a sentence was calculated, and a substantive component, which relates to the length of the resulting sentence. Id. In arguing that the district court impermissibly treated her open plea as an aggravating fact warranting harsher punishment, Ms. Cozad raises a procedural reasonableness challenge. See United States v. Sayad, 589 F.3d 1110, 1116 (10th Cir. 2009) (“Generally, a district court’s use of an improper factor invokes procedural review.”); United States v. Pinson, 542 F.3d 822, 835–36 (10th Cir. 2008) (“While the weight the district court places on certain factors is reviewed for substantive The Tenth, as we know is were the majority of USDB habeas petitions come from.
Army Court of Criminal AppealsUnited States v. Thompson. Appellant pled guilty in accordance with a PTA to conspiracy to murder with premeditation and as an aider an abettor to premeditated murder. He was sentenced to Life and a DD. On appeal ACCA sets aside the finding of x because the plea was improvident. A rehearing is allowed. Some briefs are available here. The issue is whether he had a "guilty mind." Or as ACCA says, "Actus non facit reum, nisi mens sit rea, 'the act alone does not amount to guilt; it must be accompanied by a guilty mind."' United States v. Hill, 55 Fed. 3d 1197, 1202 (6th Cir. 1995). Appellant now asserts the military judge abused his discretion by accepting his plea of guilty, arguing that the record discloses a substantial basis in law and fact for questioning the plea. We agree. To quote Bailey, appellant's guilty plea admitted to an "evil-doing hand" but not an "evil-meaning mind." Stated another way, appellant's pica established the actus reus but not the requisite mens rea necessary for a conviction as a principal to premeditated murder under an aider and abettor theory. Keep in mind this is a guilty plea case and must be analyzed for an abuse of discretion. See Moratalla, CAAFlog, Dec. 7, 2021. Essentially the court finds that Appellant's responses during the plea colloquy set up a substantial question because, "Guilty pleas "must be analyzed in terms of providence of the plea, not sufficiency of the evidence." United States v. Faircloth, 45 M.J. 1 72, 17 4 (C.A.A.F. 1996). In Nye & Nissen v. United States, the Supreme Court made clear that the mens rea for criminal liability as a principal under an aider and abettor theory is one of shared intent. 336 U.S. 613 (1949). " In order to aid and abet another to commit a rime it is necessary that a defendant 'in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed."' Id. at 619 ( quoting L. Hand, J ., in United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938)). The Supreme Court reaffirmed its adherence to Judge Learned Hand's concept of shared intent in Rosemond v. United States, referring to Judge Hand's formulation, quoted above, as a "canonical The court observes that "Federal Circuit Court jurisprudence" is informative in interpreting the similar statute of UCMJ art. 877. So it adopts a shared intent theory of liability. The court found a number of statements in providency to be unhelpful in affirming the plea.
Navy-Marine Corps Court of Criminal AppealsUnited States v. Delgado.
Result. Findings and sentence affirmed. Some facts. Appellant was initially screened as a medium security prisoner. However, the Command Duty Officer [CDO] performing the screening decided to override this initial classification due to the length of Appellant’s sentence and classified him as a maximum security prisoner. As a result, Appellant was placed in segregated confinement away from general-population prisoners. Appellant exhausted admin remedies, without success. Court finds the Brig properly applied and followed instructions without any "ill motive." Court is "reluctant to second guess" here. Potential appellate caseUnited States v. Cadet JM. Trial starts Monday on allegations of sexual abuse of a child. Cheers, Phil CaveCourt of Appeals for the Armed ForcesUnited 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.
Ninth Circuit Court of AppealsErickson v. Blanckensee, No. 19-16165, 2021 U.S. App. LEXIS 34289 (9th Cir. Nov. 18, 2021) . Kelly Erickson appeals pro se from the district court's order denying his 28 U.S.C. § 2241 habeas petition. Prior history: United States v. Erickson, 63 M.J. 504 (A.F. Ct. Crim. App. 2006) aff'd 65 M.J. 221 (C.A.A.F. 2007) cert. denied Erickson v. United States, 552 U.S. 952 (2007). A GP case in which the MJ sentenced him to Life w/poss. of parole. The appellant initially asserted four errors for our consideration: (1) sentence is inappropriately severe; (2) ineffective assistance of counsel because his trial defense counsel erroneously advised him that he would be eligible for parole in 10 years so he rejected a pretrial agreement (PTA) that would have limited his confinement to 38 years; (3) MJ erred by admitting uncharged misconduct; and (4) trial counsel improperly compared him to Osama Bin Laden, Adolph Hitler, and the Devil during his sentencing argument. In a supplemental filing, the appellant raised four additional errors: (1) pleas were improvident because of his mental and emotional state at trial; (2) the court-martial lacked jurisdiction to try him because Article 3(a), UCMJ, 10 U.S.C. § 803(a), is unconstitutional as applied; (3) his plea to Charge I and its Specification was improvident; and (4) his plea to Charge IV, Specification 5 was improvident. 63 M.J. at 505. Following military court proceedings, a federal court may only grant a writ of habeas corpus to "guard against the military courts exceeding their jurisdiction, and to vindicate constitutional rights." Broussard v. Patton, 466 F.2d 816, 818 (9th Cir. 1972) (citations omitted). Review of habeas proceedings "involving military convictions is limited to determining whether the court-martial had jurisdiction of the person accused and the offense charged and whether it acted within its lawful powers." Id. at 818 (citing Sunday v. Madigan, 301 F.2d 871 (9th Cir. 1962)). "[O]nce it has been concluded by the civil courts that the military had jurisdiction and dealt fully and fairly with all such claims, it is not open to such courts to grant the writ simply to re-evaluate the evidence." Id. (quoting Sunday, 301 F.2d at 873). "[I]t is not the duty of civil courts simply to repeat that process—to re-examine and reweigh each item of evidence . . . . It is the limited function of the civil courts to determine whether the military have given fair consideration to each of these claims." Burns v. Wilson, 346 U.S. 137, 144, 73 S. Ct. 1045, 97 L. Ed. 1508 (1953). 2021 U.S. App. LEXIS 34289, at *1-2.
A number of great poets and writers came from the experience gained in the trenches of WW-I, among them was Wilfred Owen. He happened to meet up with some others at the famous Craiglockhart Hospital. Having recovered sufficiently, he was returned to duty.  On November 4, 1918, he was killed, terminating a promising writing career. His mother received the telegram announcing his death in the afternoon of November 11, 1918. Sgt. Henry Gunther, USA, is reported to be the last soldier from any of the belligerent armies to die on the battlefield (although many died later of their wounds). He died at 1059, November 11, 1918. He was the son of German immigrants to America. Thousands more soldiers, 1,100 of them in one unit, would die during the morning before the Armistice took effect. Augustin-Joseph Victorin Trébuchon, 15 minutes before the Armistice, appears to be the last poiuli to die. I thought we might take a break from current disputes and remember the past. Between August 1914 and 31 March 1920, just over 3,000 men were sentenced to death in British army courts martial. Offences included desertion (by far the most common capital crime), cowardice, murder, espionage, mutiny and striking a superior officer. In roughly 90% of cases, the sentence was commuted to hard labour or penal servitude. Recourse to this most extreme application of military discipline varied among First World War combatants. Britain seems to have fallen somewhere between France - whose much larger army suffered roughly 700 executions - and Germany, whose High Command seems to have deployed firing squads less regularly than its British counterpart. (Yes, sics everywhere.) Th[e following] essay will survey some essential features of military justice in World War One and present some of the key evidence that has emerged from current research about judicial practices. The essay restricts itself to the impact of military justice on soldiers; it excludes any consideration of military justice applied to civilians or to prisoners of war (POWs). After a brief overview of the military codes and procedures in effect during the war, the essay describes the range of punishments available to military authorities, with special attention given to the most controversial aspect of military justice, the use of the death penalty and executions. This is followed by a section on desertion – one of the most frequently prosecuted serious military offences – which offers a convenient way of comparing and contrasting the military justice systems of several of the belligerent countries. Finally, the legacy of military justice in World War One, in particular with regard to the German case, is examined. Steven R. Welch, Military Justice. International Encyclopedia of the First World War, October 8, 2014. “Dans ce pays-ci, il est bon de tuer de temps en temps un amiral pour encourager les autres.” Votaire, Candide. Int'l Collectors Library at 61. You may be familiar with Admiral Byng's execution about which Voltaire gives us the memorable phrase. Voltaire had been present on the quarterdeck of Byng's flagship when the admiral was executed by his own Marines. There had been general displeasure at the admiral's lack of performance in relieving the British garrison on the island of Minorca, and it had been thought necessary to set an example for others. Which brings us to World War I. Much modern writing about military justice during that time has focused on the executions and, ultimately successful, efforts to obtain pardons for many of those executed. The to "encourage others" theme is a common link. The Shot at Dawn Campaign was just one initiative in the UK. Pardon for Soldiers of the Great War Act 2000 was NZ's reaction. And I see there is at least one Shot at Dawn memorial in the UK. We talk a lot about GoD, so I was struck by this comment. “Discipline is a subjective concept and cannot in itself be quantified. However, an indicator of a division’s discipline may be suggested by the number of its soldiers being subject to a court martial.” The conclusion from the article is that tying discipline rates to military efficiency and effectiveness is not easy and any actual conclusion is ambiguous. Discipline in the BEF: An analysis of executions in the British Divisions, 1914-1918. Western Front Association. The writer's conclusion might also extend to the effectiveness of the military justice system to affect discipline. The ANZACs were, allegedly, notoriously ill disciplined, but were considered amongst the most effective of units. See here, here, and here. (Interestingly, the British already had a similar experience with the Australians during the Second Boer War. See, e.g., Peter Fitzsimmons, Breaker Morant. Hachette, Aust. 2021.) Finally, the executions were not justified because they had no deterrent impact. The practice and threat of executions did not prevent men from deserting. The practice was so arbitrarily applied that commanders could not use them as a credible threat. Soldiers did not consider the punishment when deserting, or if they did, they took a calculated risk and determined that if caught they would escape the firing post. With a commutation rate of 90 per cent, this was a wise gamble. Executions did not keep men in the field; this was achieved through sound leadership that balanced strength, kindness and creature comforts, including rations, cigarettes and a steady stream of mail from home. Face to Face: Were the First World War executions of 25 CEF members justified? Legion, Military History Magazine (Canada). Jospin’s reference to a system of military discipline as harsh as battle itself expresses what could be termed the conventional view of military justice in World War One, one well-represented in many scholarly and popular accounts of the war. According to this view, military justice was not only extraordinarily severe, but was often brutally inhumane and unjust, an essential element in a broader set of coercive disciplinary practices designed to intimidate the common soldier and force him to continue fighting in a war of attrition and mass slaughter to the bitter end. From this perspective, soldiers of the various belligerent countries appear as helpless victims of military justice systems that had little regard for the individual or for the principle of justice, but were instead instruments used primarily to maintain discipline and achieve deterrence through harsh and often arbitrary punishment. Welch, who concludes, Overall, the current state of research tends to validate the conventional view of generally harsh military justice in World War One. Revisionist studies have offered some useful qualifications (such as a more favourable evaluation of British and Canadian commanders as a result of examinations of their commutation practices) but have not succeeded in fundamentally undermining the conventional view. Previous research has been heavily concentrated on the highly charged issues of death sentences and executions. While these are very significant issues and do reveal much about the character of military justice, they represent only one aspect of military justice. Future research needs to focus more broadly on the ways in which the various military justice systems affected the overwhelming majority of soldiers who were not among the relatively small group condemned to death. Such studies would provide a much more solid basis for evaluating the role of military justice in maintaining or undermining obedience and morale. Court of Appeals for the Armed ForcesBy order of the Chief Judge, the United States Court of Appeals for the Armed Forces will be closed all day on Friday, November 26, 2021.
For purposes of computation of time and motions to enlarge time under the Court's Rules of Practice and Procedure, November 26, 2021, will be considered a day when the Court is officially closed. Court of Appeals for the Armed ForcesAppeal — Summary Disposition in the third case argued at CAAF this term.
No. 21-0059/MC. U.S. v. Bradley M. Metz. CCA 201900089. On further consideration of the granted issue, 81 M.J. 148 (C.A.A.F. 2021), the briefs of the parties, and oral argument, we answer the issue in the affirmative. Accordingly, it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside, and the record of trial is returned to the Judge Advocate General of the Navy for remand to that court to conduct the three-pronged approach of Brown v. Illinois, 422 U.S. 590 (1975) in examining the effects of an unlawful apprehension upon a subsequent search. See United States v. Conklin, 63 M.J. 333, 338 (C.A.A.F. 2006); United States v. Khamsouk, 57 M.J. 282, 290-91 (C.A.A.F. 2002). On remand, the Court of Criminal Appeals may order affidavits or a factfinding hearing, if necessary. See United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2018), shall apply. CCA opinion. Court of Appeals for the Armed ForcesThe Daily Journal for Oct, 12, 2021, reflects that the court is clearing out the Brubaker-Escobar trailer park. Also from the Miscellaneous Docket. No. 22-0009/AR. AV2, Appellant v. John H. Cook, Colonel, U.S. Army, Appellee and Clinton Murray, Master Sergeant, U.S. Army, Real Party in Interest. CCA 20210409. Notice is given that a writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on application for extraordinary relief in the nature of writ of mandamus was filed under Rule 27(b) on this date. Some of the filings and Orders at ACCA are here.
Military Rule of Evidence 513 gives patients a privilege to prevent others "from disclosing a confidential communication made between the patient and a psychotherapist ... if such communication was made for the purpose of facilitating diagnosis or treatment of the patient's mental or emotional condition." Mil. R. Evid. 513(a). As noted in the military judge's ruling, petitioner's PTSD questionnaire is an internal Veteran's Administration document used to assess claims for disability benefits, and not for the purposes of treatment. We also take note of the military judge's observations that the form refers to petitioner as a "claimant" vice a "patient" and the document contains the disclaimer, "Please note that this questionnaire is for disability evaluation, not for treatment purposes." Air Force Court of Criminal AppealsUnited States v. Harrington. An officer panel convicted appellant of involuntary manslaughter and communicating a threat; he also pled guilty to using cocaine and marijuana more than once. Appellant was sentenced to 14 years, a DD, and RIR. There are a few AOEs.
The findings and sentence are affirmed. Judge Cadotte concurred but wrote separately to state disagreement with the finding of no error in the conduct of the unsworn victim statements. Navy-Marine Corps Court of Military ReviewSince January 1, 2021, the Appellant in nine cases has withdrawn from appellate review--out of 244 cases "decided." There also have been 156 summary dispositions (generally meaning that there are no issues raised or of significant merit to be addressed.) In 2020, zero appellants withdrew from appellate review. In 2019, one appellant withdrew from appellate review. Are these interesting numbers? Do they mean anything? Worth the readProf. Corey Yung's Sex Crimes: Second Edition is now available online. Note. "The included material is either public domain, Creative Commons, or included with the copyright owner's permission. The book itself is released under a Creative Commons license which you can find at the beginning of the book. I encourage editing, revising, and distributing under those permissive terms." LtCol Scheller's guilty plea is reported here. Among those testifying on his behalf were Rep. Louie Gohmert (R.-Tex.) and Rep. Marjorie Taylor Greene (R-Ga.), two of the most controversial members of Congress. They questioned why Scheller has been prosecuted for his actions when senior U.S. officials such as President Biden, Defense Secretary Lloyd Austin and Gen. Mark A. Milley, chairman of the Joint Chiefs of Staff, have not. I had always thought that witnesses (or the accused) could not impeach the verdict? And, see LTC (R) B. D. Bigler, A New Paradigm for Plea Agreements Under the 2016 MJA. ARMY LAWYER, No. 6, 2019 at 48. UPDATE: One month forfeiture of $5,000 in pay and a letter of reprimand. "Marine Corps Judge Col. Glen Hines said he was considering giving Lt. Col. Stuart Scheller two months of docked pay but decided to limit it to one month because Scheller spent nine days in pre-trial confinement, known as the brig, at Camp Lejeune in North Carolina." Human Trafficking. For those who have been, or might be, involved in such cases, here is a good overview of applicable federal statutes. Unless Congress were to do away with Article 134(3), UCMJ, these are potential assimilated crimes. Cheers, Phil CaveCourt of Special Appeals-MarylandRespondek v. State. No double jeopardy, says the court relying on Gamble v. United States, ___ U.S. ___, 139 S.Ct. 1960, 1964 (2019). Note, part of the reasoning behind the initial Maryland sentence was input from his assigned DSO attorney, that he would be facing administrative elimination. Apparently, the GCMCA was not satisfied with the result and a court-martial ensued. See, Manual of the Judge Advocate General Manual (JAGMAN) JAGINST 5800.7G at 0124.b(1)(3). This action requires us to determine whether Brad Respondek, a former lieutenant in the Navy, is required to register as a sex offender under Maryland's Sex Offender Registration Act ("MSOR") or, alternatively, the federal sex registration statute ("SORNA"). Mr. Respondek was first convicted in the Circuit Court for Montgomery County on two counts of possession of child pornography. Based on Mr. Respondek's exemplary behavior during his post-conviction probation period, the circuit court granted him a probation before judgment and excused Mr. Respondek from the obligation to register as a sex offender under MSOR as a result of that charge. Ooops. Here is the NMCCA decision in his military appeal. No petition to CAAF. Court of Appeals for the Armed ForcesFed. Dist. Ct., S.D. CaliforniaUnited States v. Booker, No. 3:18-cr-02611-GPC, 2021 U.S. Dist. LEXIS 177641, 2021 WL 4244895 (S.D. Ca. Sept. 17, 2021). Defendant moved to suppress the passcode to his iPhone 6 Plus, which was recorded by a Naval Criminal Investigative Service ("NCIS") agent during an interview, as well as any results of the subsequent searches of the iPhone 6 Plus using that passcode. Defendant alleges that the passcode was obtained in violation of his Fourth, Fifth, and Sixth Amendment rights as well as Miranda.. The court concludes that,
Court of Appeals for the Armed ForcesCOVID rule for civilians wishing to enter the CAAF building. Note it does not address military personnel yet to be vaccinated or who have an exemption. Air Force Court of Criminal AppealsUnited States v. Murillo. In this GP case the MJ sentenced Appellant to 106 days, a BCD, and a reprimand for divers use of cocaine. Appellant raised three issues.
The court did not decide if TC's argument was improper, rather, they decided that, Although trial defense counsel’s objection was overruled, the military judge demonstrated he was not committed to trial counsel’s legal understanding of the evidence. We are confident the military judge put “victim” in the appropriate context and that Appellant was sentenced on the basis of the evidence alone and not trial counsel’s interpretation of “victim” under the rules applicable to sentencing. The court did not find error regarding the NJP record because,
United States v. Dodd. In this GP case the MJ sentenced Appellant to 12 months, a BCD, and a reprimand, because the Appellant had damaged personal property, and five DV A&B. The case was submitted without assignment of error but the court identified a post-trial error for which the court ordered correction of the error. United States v. Motus. Having returned from correction of post-trial errors, the court reviewed five issues.
Finding no error the court affirmed the findings and sentence. 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. Ed. 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). 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 CaveAir Force Court of Criminal AppealsUnited States v. Daniel. GP, MJA to attempted possession of MDMA with intent to distribute, divers use of MDMA, divers use of Adderall, a use of LSD; a use of "mushrooms." Sentenced to two-months, a BCD, and stuff (including a reprimand). Appellant's sentence is not "inappropriately severe."
*** United States v. Trusty. GP, MJA to possessing CP. Sentenced to 3.5 years, DD, and RIR. Raises two issues: impropert TC argument on uncharged misconduct and "unnecessarily displaying contraband to the military judge," and post-trial error. Remanded for corrective action by a CA. Court of Appeals for the Armed ForcesWe are advised the Government may well certify United States v. Mellette to CAAF (discussed here). (From the CAAF Desk.) United States v. Kyle joins the post-trial issues trailer park. ACCA pointed to the issue in a footnote. We note that the convening authority failed to take action on appellant's adjudged sentence, and we considered this as part of our review of appellant's case. In light of United States v. Coffman, 79 M.J. 820 (Army Ct. Crim. App. 2020), we find the convening authority's failure to act on appellant's sentence as required by the applicable version of Article 60, UCMJ, while error, was neither jurisdictional nor prejudicial to appellant's substantial right to seek clemency from the convening authority. In making this assessment, we note the appellant pleaded guilty and did not use the opportunity to submit matters to the convening authority under R.C.M.1106. Accordingly, the convening authority's error is harmless in this case. Courts of Criminal AppealsThey are actively deciding cases, most are summary affirmances. Potential Appellate CasesUnited States v. A Marine. This Marine was accused but not indicted by a grand jury in MA. His GCM began Monday for allegations of murder, voluntary manslaughter, and assault. He was an “on-duty” Reservist at the time of the offenses. (Courtesy of NBCboston.) United States v. An Air Force Major. A female major is in trial at the USAFA for allegations of sexual and professional misconduct. The accusations include “abusive sexual contact,” abuse of a leadership position, and dereliction of duty, the release stated. In 2019, while working at the Air Force Academy Preparatory School, EC was accused of groping a female trainee on at least two occasions. She was also accused of buying alcohol for underage cadets at the Academy and of having an unduly familiar relationship with a subordinate, according to case records. (Courtesy of The Gazette.) Pending Appellate CasesUnited States v. Stafford. Stafford, an Airman at Mountain Home Air Force Base and covered by the Mountain Home News in 2014 & 2018 with no local court convictions. So reports the Mountain Home News. The non-commissioned officer was prosecuted and convicted of four rapes, one count of attempted sexual assault, one count of aggravated assault, and two counts of simple assault. He was sentenced to 18 years, six months of confinement, reduced in rank to airman basic, and given a dishonorable discharge during his General Court Martial hearing in March 2021. United States v. Matthews, United States v. DeDolph, United States v. Maxwell, and United States v. Madera-Rodriguez. Army Times has a quick summary. See here, from 2019, which are termed “leaked details.” Madera-Rodriquez is in trial this week. Cheers, Phil Cave.Contact us: [email protected] Colorado Supreme CourtColorado v. Johnson, No. 2021 CO 35, 396 P.3d ____ (2021), suggests an accused must make a Hobson's choice in some situations when he wants to testify, yet there is successfully suppressed evidence. There is the potential for impeachment with the suppressed evidence if the accused testifies. When advising an accused about testifying it is common to identify the value added beyond what is already in evidence and then balance that with any devaluation that might be caused through cross-examination or contradiction. Where there is suppressed evidence the defense becomes the gate-keeper. So what about the situation where the core part of the defense may lead to trial counsel wanting to impeach or contradict with prior suppressed evidence? Mil. R. Evid. 304(e)(1) and 311(c)(1) give a partial answer—but does the decision require a more sophisticated analysis? And what should a military judge do when she gets a defense motion-in-limine asking for a ruling about use of suppressed evidence on cross-examination (kick the can down the road) or when the case blows up? Danger, Will Robinson should you decide to testify! Walder v. United States, 347 U.S. 62 (1954) and James v. Illinois, 493 U.S. 307 (1990), may help further to frame the issue for discussion which brings us Colorado v. Johnson, and the court's discussion of evidence rules and U.S. Supreme Court precedent. In summary, In this opinion, the supreme court reviews a decision of a divided panel of the court of appeals holding that the trial court reversibly erred by forcing the defendant to choose between excluding unconstitutionally seized evidence and fully pursuing an alternate suspect theory at trial, thereby violating the defendant's right to present a complete defense. The supreme court holds that the impeachment exception to the exclusionary rule does not extend to a defendant's truthful, yet incomplete, presentation of evidence: A defendant may offer such evidence, under the particular circumstances here, without opening the door to previously suppressed evidence. The court then [C]oncludes that a defendant may offer truthful, albeit potentially incomplete, evidence without opening the door to previously suppressed evidence. This is because the important truth-seeking rationale that prohibits a defendant from turning the exclusion of illegally obtained evidence into a shield for perjury does not apply with equal force to truthful but potentially misleading testimony. Accordingly, we affirm the judgment of the court of appeals. The dissent argues that, by its decision, the court creates a situation where an accused can exploit the exclusionary rule in an affirmatively misleading manner.
Supreme CourtFrom the great Prof. Berman’s Sentencing Law & Policy. The Court was notably unanimous in Caniglia v. Strom, No. 20–157 (S. Ct. May 17, 2021).bThe start and close of the short opinion for the Court by Justice Thomas serves as a useful summary: Army Court of Criminal AppealsCGCCA United States v. Leal. ACCA United States v. Lancaster. Convicted by an 'enlisted panel' appellant was convicted of one specification of stealing military property and sentenced to 30 days, a BDC, a reduction, and a reprimand. Appellant claims her trial defense counsel violated her right to autonomy in her defense by conceding her guilt at trial. Additionally, in matters submitted pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), appellant asserts her counsel were ineffective because they failed to comprehend the law relevant to her case. We disagree on both counts, and affirm the findings and sentence. Methinks a little more to come on the concession of guilt by DC. AFCCA United States v. Stefanek. In this mixed plea MJA case appellant was sentenced to 24 months confinement, a BCD, and other stuff. Appellant pleaded guilty to one specification of absenting himself from his place of duty and one specification of unlawfully carrying a concealed weapon into his place of work; he also was convicted, contrary to his pleas, of one specification of kidnapping. The appellant raised six issues.
At 0800, on 1 April 2019, Appellant’s supervisor and mentor, SB, sat at her office desk when Appellant came to see her carrying a long shipping box, a duffel bag, and a soda. SB was a noncommissioned officer (NCO) and the two had known each other for approximately eight months. Although Appellant’s voice was faint, SB heard him say, “Can we talk? If not, I’m going to kill myself,” or words to that effect. SB asked Appellant to repeat what he had just said, which he declined to do. SB asked Appellant to write “Do Not Disturb” on the whiteboard outside her door, and Appellant complied. Appellant then reentered SB’s office, closed the door, and locked the pushbutton knob on the inside of the door without being asked. As Appellant sat in a chair next to the door, SB then asked what was in the box, and Appellant told her he had a shotgun. SB asked to see it, and Appellant partially removed the gun from the box. SB did not know if it was loaded and had thoughts that she would not make it out of her office or see her family again. Appellant related that he would kill himself if she did not talk with him or if there were any interruptions. SB had a “long talk” with Appellant and did not feel free to leave even as she needed to use the restroom. During their conversation, SB attempted to contact others outside the office by asking for Appellant’s permission to contact MG, an NCO junior in grade to SB, who was scheduled to come to her office, and to tell him not to come. Appellant gave her his permission to contact MG. MG contacted SB on her cell phone, and SB was able to message him at 0809 to say that Appellant was in her office and had locked the door. This was the first time that she notified anyone that she was being held against her will because Appellant was “watching [her] every move,” and SB wanted to comply with his demands for no interruptions. MG immediately asked, via text message, if he should help or call someone. When SB did not respond, MG knocked on SB’s office door, but no one answered. MG realized the door was locked, so he went to find the first sergeant. |
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