Up Periscope -- 12 February 2021

SUPREME COURT OF MONTANA Montana v. Mercier (a pre-COVID case).
QP: Was Mercier denied his right under the United States and Montana Constitutions to confront witnesses against him when the State presented a foundational witness in real time by two-way video-conference? The court held that “that this two-way video-conferencing testimony violated the Confrontation Clause[.]
 
Courts have interpreted the Supreme Court's opinion in Maryland v. Craig, as creating an exception to the Confrontation Clause if two prongs are satisfied: it must first be shown that denial of physical face-to-face confrontation is necessary to further an important public policy....The second prong of the Craig analysis requires the trial court to determine that reliability of the testimony is otherwise assured. State v. Mercier, 2021 WL 248487 (Mont. 2021).

The State urges that the nature of the testimony—foundational with no substantive force—weighs in favor of approving the video testimony. However, nowhere in the text of the Confrontation Clause is there language limiting the type of testimonial evidence to which the right to physical confrontation applies....

We conclude that furtherance of an important public policy to allow Special Agent Johnsrud to testify via two-way video-conferencing was not here demonstrated, and the first prong of the Craig analysis was not satisfied, in error.

The court noted that “[Craigs] continuing utility has been questioned in two major respects; first, whether its analysis extends to two-way video procedures has led to a circuit split in the federal courts. Slip op. at 12 (citations omitted). The court found the error harmless and affirmed the conviction and sentence.

U.S. DISTRICT COURT
An interesting approach. Apparently, this was “not a real good warrant.” The "court evaluates good faith first, probable cause second. The nature of the inquiry sets up the second answer. If the GFE applies, PC is close enough; if not, probable cause isn’t likely there." See United States v Guerra, 2021 U.S. Dist. LEXIS 21080 (S.D. Tex. Feb 2, 2021).

AFCCA

United States v. Merritt, II. Appellant claimed cruel and unusual confinement conditions and credit for the delay in docketing his case with the court. This another case of a prisoner with a medical condition allegedly being denied his medically approved treatment. The court finds no relief is required on his Eighth Amendment or sentence appropriateness claim, nor is it warranted on his post-trial delay claim.

United States v. Orosco. In this judge-alone trial, Appellant raised three issues on appeal: Did trial counsel make an improper argument in sentencing, should Appellant get credit for the post-trial delay; and the court should consider an unpreserved Quiroz issue. The court affirmed the findings and sentence.

United States v. Baird. Appellant sought post-trial delay relief and submitted a Grosty alleging IAC during sentencing. The alleged failures: not presenting evidence of his mental or physical illness, information about a suicide attempt, about his separation from wife and new son; and did not present other matters. Defense counsel responded,

• The psychological reports suggested malingering.
• There was uncharged misconduct involving a minor characterized by a “lengthy and perilous” Mil. R. Evid. 404(b) notice. (NOTE, THE DEFENSE DID NOT ASK THAT THE RULES OF EVIDENCE BE RELAXED—GOOD MOVE! There are many ways you can avoid having to relax the rules of evidence on sentencing. Your client can lay a foundation for much of your documents sufficient to get over form objections. Also, character letters suggesting rehabilitative potential should be admitted under Mil. R. Evid. 405 if done correctly.)
• Counsel had lengthy discussions with the client explaining the dangers of introducing information that would allow the prosecution to rebut with negative information.

NMCCA

United States v. Page, III, 80 M.J. ___ (N-M Ct. Crim. App. 2021). In this GP case involving Article 117a, UCMJ, violations, Appellant raised two issues: information independent of the broadcasting of a photo does not satisfy the element that the victim be identifiable from “information displayed in connection with the intimate visual image”; and (2) the term “broadcasting” does not include text messaging a photo to one’s own phone. The court found merit in the first AOE, set aside that guilty plea, and mooted the second claim. The court affirmed the remaining findings and the sentence.

United States v. Miller. At the Government's request, the court reconsidered an order remanding the case for new post-trial processing. The court then found it necessary to set aside the entry of judgment and remand so the convening authority can comply with R.C.M. 1110 and get a new entry of judgment under R.C.M. 1111.

United States v. Adad. In this GP case, the court raised two issues: failure to have Appellant’s forum selection on the record, and did DC argue for a BCD (a BCD striker case) without sufficient indicia that is what the Appellant wanted. (More on this one to come.)

United States v. Martin-Moore. This is a CP case in which Appellant's Grosty argued that possession of sexually explicit images of two minors “is not the sort of conduct that warrants criminal prosecution for possessing CP.” The court affirmed the findings and sentence.

It appears Appellant engaged in a sexual relationship with one victim who was over sixteen but under 18. He took pictures of their randy behavior and had them in his possession. The Appellant secretly took photos of a second underage victim while in her bathroom. The court observed that United States v. Taman does not apply here. Just because there can be consensual sex with a person of 16 years old up to 18 years old does not excuse taking sexually explicit images in violation of a different statute.

United States v Nelson. LCDR Nelson was convicted by members of UA terminated by apprehension, conduct unbecoming an officer (cohabitating with known prostitutes and knowingly making a false statement regarding his active duty/mobilization status), and patronizing prostitutes. On appeal he argued a suppression issue, factual sufficiency as to an Article 133 violation, and sentence appropriateness.

The court found no error in the MJ's decision in "suppressing Appellant’s statements as to one charged offense but allowing the Government to use it at trial to prove the remaining offenses to which the statement pertained."

The court set aside the Article 133 conviction and affirmed the other findings. The court found that "the Article 133 offense at issue stated an offense, but the evidence was legally insufficient to prove that Appellant’s conduct was unbecoming notwithstanding whether it amounted to a specific enumerated offense."

The court affirmed a dismissal and the forfeitures after reassessment. The members were advised during sentencing that he had served 300 days pretrial confinement (the decision indicates he may actually have served 305 PTC). Appellant's UA for about three weeks terminated by apprehension led to the PTC.

WORTH THE READ

The USNI News has the redacted record of trial in United States v. Gallaher—it is 4205 pages.

John M. Donnelly, Lawmakers near big response to military “rape epidemic:” Biden’s support for overhaul to military’s justice system could make it a reality this year.  Roll Call, 4 February 2021.

Lawmakers, frustrated by the Defense Department’s inability to curb rape in the ranks, are moving closer to possibly making a momentous change in the military justice system.
Members of the Senate Armed Services Committee are increasingly receptive to a long-standing proposal by New York Democrat Kirsten Gillibrand, chairwoman of the Armed Services Personnel Subcommittee, to change prosecution of sexual assault, and perhaps other major crimes, from military commanders to independent prosecutors.

Several committee members this week hinted that they would back Gillibrand, in some cases reversing earlier positions. And, in so doing, they rebuffed abiding Pentagon resistance to the proposal.

Meanwhile, momentum may be gathering behind a similar House proposal by Jackie Speier, the California Democrat who chairs the comparable Armed Services personnel panel. Nearly half the House co-sponsored her bill in the last Congress.

MAJ Clay A. Compton, Putting Compulsory Back in Compulsory Process. 215 MIL. L. REV. 133 (Spring 2013).

Hamilton-Smith, Guy Padraic, Banishing ‘Sex Offenders': How Meaningless Language Makes Bad Law. 50 Southwestern Univ. L. Rev., 44 (2020).

Holland, Brooks, Permission and Purpose: Does a Person Violate the Federal Computer Fraud Statute by Accessing a Computer with Authorization but for an Improper Purpose? 48 A.B.A. Supreme Court Preview Journal 9 (2020).

FOR WHAT IT IS WORTH

Task & Purpose report, An Army veteran, arrested for two counts of indecency with a child had been investigated six times during his service for child sexual abuse, cleared of wrongdoing by the Army each time, and ultimately approved for retirement. The case is being prosecuted in civilian court.