Dateline: 20 September 2020 (as of 0900). You may find some repetition of specific posts—I do that here so you have an easy summary of everything rather than hunting-and-pecking.
Whether Appellant is entitled to sentence relief for the unreasonable 322-day post-trial processing delay between the sentencing and initial action, and whether the detailed appellate defense counsel’s failure to assign any errors to the Army Court denied Appellant the effective assistance of counsel.
On 24 April 2020, the Court of Appeals for the Armed Forces (CAAF), found it
was improper for this court, in remanding a case for a sentence reassessment, to limit
the convening authority's discretion by putting a limitation on the sentence that could
be approved. United States v. Gonzalez, 79 M.J. 466, 469 (2020). The CAAF
remanded the case to this court with the directive to: a) dismiss Specification 2 of
Charge III and reassess the sentence; orb) remand the case to the convening authority
to either conduct a rehearing on Specification 2 of Charge III and the sentence, or
dismiss Specification 2 of Charge III and conduct a rehearing on the sentence. Id. at
The initial sentence was a DD and ten years, ACCA initially affirmed six years, and now they have affirmed five years.
“On appeal, appellant argues 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 were ineffective for allowing such
evidence to be introduced. As discussed below, we disagree.”
“[N]either Mil. R. Evid. 707 nor Kohlbek permits what happened at
appellant's trial; that is, the admission of appellant's polygraph results based on the
notion that the results themselves were relevant to explain the facts and
circumstances surrounding appellant's polygraph examinations and his reasons or
motivations for providing a confession to SA BD.”
“Military Rule of Evidence (Mil. R. Evid.) 707 prohibits the admission of three
categories of polygraph examination information into evidence: (1) "the result of a
polygraph examination," (2) "the polygraph examiner's opinion," or (3) "any
reference to an offer to take, failure to take, or taking of a polygraph examination."
Our superior court's decision in United States v. Kohlbek addressed only the third
category of polygraph evidence. 78 M.J. 326 (C.A.A.F. 2019). Kohlbek has no
effect on the longstanding proscriptions contained in the first two categories.
This case presents a tripartite failure of the adversarial system as evidence of
the results of appellant's polygraph examinations and the opinion of the polygraph
examiner were admitted into evidence.”
“Nevertheless, we affirm because appellant affirmatively waived any objection to the admission of such evidence and, even assuming the issue was not waived, we find appellant suffered no prejudice by its admission. Additionally, we conclude appellant fails to establish that his defense team provided ineffective assistance of counsel.”
It appears there were extensive “negotiations” between trial and defense about the admissibility of the polygraph evidence which lead to an “agreement.”
“Special Agent BD then testified in detail about appellant's polygraph examinations, including the results and his opinion that appellant's answers during the polygraph indicated deception. Defense counsel did not object. Additionally, through SA BD's testimony, the government introduced, without objection: appellant's rights advisement form; his polygraph examination consent form; his sworn statement; and, an edited version of appellant's video-recorded interview.”
“Defense counsel's far-reaching cross-examination of SA BD sought to undercut the reliability of appellant's sworn statement by highlighting SA BD's allegedly
manipulative tactics, accusing SA BD of making improper promises to appellant to
extract a confession, noting the stressful nature of the polygraph examinations, and
questioning SA BD about the concept of false confessions.”
Finding a knowing and intelligent waiver of any objection the court discussed the issue as one forfeited rather than waived—and discusses the plain error. Finding error but no prejudice the court noted that, “Appellant fails, however, to show that the admission of the polygraph evidence resulted in material prejudice. We reach this conclusion based on the overwhelming evidence of appellant's guilt, most of it supplied by his own words in his confession. See Arizona v. Fulminante, 499 U.S. 279, 296 (1991) ("A confession is like no other evidence."). The devastating effect of his admissions cannot be overstated.”
On the IAC issue the court found,
“Addressing counsel's performance, we do not find that it fell beneath the
constitutional floor of competency. Knowing appellant's confession would be
admitted at the court-martial, and aware of the damaging effect it would have,
counsel selected an objectively reasonable strategy of lodging a broadside attack on
its reliability. He did so by thoroughly cross-examining SA BD, accusing him of,
among other things, manipulating appellant and making false promises in order to
produce a false or coerced confession.”
Appellant raises two assignments of error [AOEs]: (1) the military judge abused his discretion by admitting evidence of a recording between Appellant’s wife and the victim that was testimonial hearsay; and (2) the military judge erred by admitting the recording under the residual hearsay exception found in Military Rule of Evidence [Mil. R. Evid.] 807. We find no prejudicial error and affirm.
In the News—pending appellate cases.
· The Marine Corps has temporarily dismissed charges against a junior officer who has accused of having ties to white supremacists so that investigators can look into new allegations of misconduct, a Corps spokesman said on Monday. Marine 2nd Lt. Felippe Maher had been slated to appear before a general court-martial later this month before the case was withdrawn on Sept. 9. The charges against Maher were dismissed without prejudice, which means they can still be brought to a court-martial, said Capt. Sam Stephenson, a spokesman for Training and Education Command. The prosecution decided to start the case over in light of recent alleged misconduct that was discovered two weeks prior to Maher’s original trial date, said Stephenson, who declined to comment about what the latest allegations against Maher entail because the matter is currently under investigation.
Worth the Read.
· Jack Arbuthnot, Victim Impact Testimony and Juror Judgements: The effects of Harm Information and Witness Demeanor.
Abstract: Victim impact testimony (i.e., testimony concerning the harmful consequences on the victim’s surviving family) was examined to determine its effect on the sentencing judgments of mock jurors. Undergraduate students watched a videotaped murder trial simulation, rendered verdicts, and made sentencing judgments. During the penalty phase of the trial, participants were either given no victim impact testimony, or they were given victim impact testimony that varied both the severity of the harm information (mild hard severe harm) and the demeanor of the witness (low affect high affect). The results indicate that information concerning the harm experienced by the victim’s relatives, not the affective demeanor of the witness, influenced sentencing judgments. Implications for the U.S. Supreme Court decision in Payne v. Tennessee, 501 U.S. 808 (1991) are discussed.
· Debra Cassens Weiss, Incensed judge orders every federal prosecutor in Manhattan to read her decision. ABA Journal, 17 September 2020.
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