Up Periscope - A Summary of Last Week

Dateline: 21 August 2020
 
12 August 2020—AFCCA issued an Order in In re Justice a writ petition.

• On 5 August 2020, Petitioner requested we issue a writ of mandamus directing the military judge to initiate proceedings in his general court-martial on 10 August 2020, the original docketed trial date. According to the petition, the Government does not have a plan for preserving Petitioner’s constitutional rights now that the military judge has granted a continuance. This court docketed the petition the same day it was filed.

 

• This is a COVID case with speedy trial implications. The petitioner is in custody because,

 

• On 16 March 2020, a criminal complaint was filed against Petitioner in United States District Court in Albuquerque, New Mexico. The complaint alleged Petitioner unlawfully imported a firearm, a violation of 18 U.S.C. § 922(l), and possessed an unregistered silencer, a violation of 26 U.S.C. § 5861(d). Petitioner was taken into custody and is currently detained at the Cibola County Detention Center (CCDC) in New Mexico.

 

• On 16 April 2020 court-martial charges were preferred on charges unrelated to the alleged importation.

 

• The issue arises because the accused was apparently COVID positive and so there were difficulties in producing him for trial. The Government requested and got a delay in trial of quite some over defense opposition.

 

• The defense petitioned, AFCCA denied.

 
12 August 2020—AFCCA decided United States v. Heeter.

• On appeal, Appellant raises two assignments of error (AOEs): (1) whether civilian trial defense counsel (JP) was ineffective when he (a) advised Appellant that he had ten days from the date JP received the staff judge advocate’s recommendation (SJAR) to submit his clemency matters, and (b) requested that the convening authority set aside Appellant’s bad-conduct discharge, which was beyond the convening authority’s power; and (2) whether new posttrial processing is required because (a) the convening authority denied Appellant the required ten days from the date he received the SJAR to submit clemency matters, and (b) the staff judge advocate (SJA) did not address JP’s request in the addendum to the SJAR. Because we find in favor of Appellant as to the second AOE, his first issue is moot and is not addressed in this opinion.

 
17 August 2020—NMCCA decides United States v. Lewis.

• Appellant was convicted, contrary to his pleas, of three specifications of failure to obey a lawful order or regulation for fraternization and wrongfully providing alcohol to a person under the age of 21, one specification of sexual assault by causing bodily harm, one specification of indecent viewing, and one specification of assault consummated by a battery. He asserts that the evidence is legally and factually insufficient to support his convictions for assault consummated by a battery, sexual assault, and indecent viewing.

 

• Bill Cassara posted a fuller note on this at https://www.caaflog.org/home/recent-nmcca-opinion-us-v-lewis.

 

• Of note, the Keago USNA, case made it to the Kenyan media. http://www.mwakilishi.com/article/diaspora-news/2020-08-20/kenyan-born-us-naval-officer-jailed-for-25-years-for-sexual-assault.

 
In the News—pending appellate cases.
 
            Ongoing events suggest the possibility of courts-martial coming from the field either as a direct result of the incidents under investigation or because commanders will pay more attention to future similar events with attendant disciplinary actions— 

• Army Times reports that Congress wants to hold hearings into the number and type of military training “accidents.” As examples of the types of issues see UnitedStates v. Cherry, 22 M.J. 284 (C.M.A. 1986); United States v. Ducharme, 59 M.J. 816 (N-M.C. Ct. Crim. App. Mar. 12, 2004) (unpub.).

 

• Army Times reports leadership and Congressional interest in the number of murders and sexual harassment at Fort Hood--here and here. On 17 August 2020, Stars & Gripes reports that the Committee to review Fort Hood’s command climate and culture has begun it’s work.

 

• “Justice Served” is a regular “service” of the Fort Hood Sentinel. They are reporting for the month of June and July 2 new appellate cases out of 21. (Quite a few acquittals including “a specialist acquitted by a military judge of one specification of attempted premeditated murder, one specification of aggravated assault with a dangerous weapon, and one specification of wrongfully appropriating a government firearm.”

 

• This all happens as Task&Purposehas a report on a third Soldier missing at Fort Hood.

 
Worth the Read.
 
            With a declaration of martial law come courts-martial. So, Joseph Nunn, Martial Law in the United States: Its Meaning, Its History, and Why the President Can’t Declare It—. The Brennan Center 20 August 2020—a topical discussion. https://www.brennancenter.org/our-work/research-reports/martial-law-united-states-its-meaning-its-history-and-why-president-cant
            
            We all have clients who are subject to sex offender registration. Here is a report which may have some small relevance or give ideas to us. Pickett, Satifka, & Shah, Labeled for Life: A Review of Youth Sex Offender Registration. Juvenile Law Center, 2020. 
https://jlc.org/sites/default/files/attachments/2020-08/Labeled%20for%20Life%20August%202020.pdf
 
            Ligeia Quackberg, The Prosecutorial Duty to Disclose Exculpatory Material: Appropriate Remedies and Sanctions. The writer was a LLM student in International Rights and Criminal Justice, Utrecht University.

• This essay will discuss the Prosecutor’s duty to disclose exculpatory evidence to the defense. It will try to highlight the different aspects of this obligation, the complexity and controversy surrounding this obligation and lastly try to specify in what way the international criminal tribunals and the international criminal court have dealt with a violation of this obligation. This obligation is seen as an essential part of the right to a fair trial. Nevertheless, it has been violated repeatedly in the history of criminal justice. The International Courts have developed a variety of remedies and sanctions to address a violation of this obligation, which will be discussed in detail. Despite this, an accountability gap exists. It is undoubtedly crucial that this obligation be respected. 

 
​             Justin Murray, Policing Procedural Error in the Lower Criminal Courts, Fordham L. Rev. (forthcoming) [https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3675869].

• The criminal justice system depends on reviewing courts to formulate norms of procedural law and to make sure those norms are actually followed in the lower courts. Yet reviewing courts are not performing either of these functions very well. No single factor can fully explain why this is the case, for there is plenty of blame to go around. But the harmless error rule is a major culprit. The conventional approach to harmless error review prohibits reversal of a defendant’s conviction or sentence, even when the law was violated during proceedings in the lower court, unless that violation influenced the outcome below. This limitation impedes effective oversight of the lower courts in two significant ways. First, it enables trial judges, prosecutors, and other relevant entities (such as a district attorney’s office, to name one example) to persistently evade accountability for procedural errors, diminishing their incentives to comply with legal norms. And second, it provides reviewing courts with a handy tool to avoid resolving legal claims on their merits. Instead of holding that an error did or did not occur, thereby helping trial judges, prosecutors, and others learn what the law requires going forward, reviewing courts can—and often do—affirm on fact-bound harmless error grounds without ever adjudicating the legality of the challenged conduct.

 

• These failings call for a major shift in how courts review procedural error. [The author] propose[s] that, in addition to examining whether an error affected the outcome, as current law directs, a reviewing court should also consider whether (1) reversal would substantially help to prevent future errors, (2) the error caused substantial harm to a legally protected interest unrelated to the outcome, and (3) the benefits of reversal, as tabulated in the previous steps, outweigh its costs. After making the case for this framework and discussing how to operationalize each of its components, I then explore, a bit more tentatively, whether the same set of ideas could help stimulate much-needed rethinking of other controversial rules that further obstruct the policing of procedural error in the lower criminal courts.

 
On the horizon.
 
At Global Military Justice Reform blog, Joshua Grubaugh writes about Gangs and Extremists in the U. S. Military, activity which is or may become a source of appellate cases. https://globalmjreform.blogspot.com/2020/08/gangs-and-extremists-in-us-military.html. There is a link to a Military.com report about Army CID reports on such activity. Out in the civilian counsel world we are having people reach out who are under investigation—investigations that may lead to court-martial and an appeal.
 
A bit of history.
 
21 August 1987, Sgt. Clayton Lonetree, the first Marine court-martialed for spying, was convicted in Quantico, Va., of passing secrets to the KGB. Lonetree ended up serving eight years in a military prison. Dwight “ML” Sullivan was one of 12 counsel out of Code 45 who represented him in this one of many interesting cases. See United States v. Lonetree, 35 M.J.396 (C.M.A. 1990). The issues were complicated, including lying to a suspect that his statements would be kept confidential, lack of Art. 31, UCMJ, warnings by intelligence agents, and is there a right to a public oral argument on appeal. The case joined those seeking to set boundaries where non-DoD agents or civilian DoD employees interrogate a suspect. One of the early cases in that line is Quillen. 

• “This Court has previously addressed the question whether an AAFES store detective must give a warning. United States v. Quillen, 27 M.J. 312 (1988). There we held that an AAFES store detective "in a very real and substantial sense acted as an instrument of the military" and thus was subject to the warning requirement of Article 31(b). United States v. Ruiz, 54 M.J. 138, 140 (C.A.A.F. 2000).”

 
Research notes.
 
            We all know that the briefs in CAAF granted cases become available once oral argument is scheduled. Did you know—you now do—that the CGCCA publishes all briefs of cases pending before them—go to https://www.uscg.mil/Resources/Legal/Court-of-Criminal-Appeals/Court-of-Criminal-Appeals-Appellate-Briefs/. Briefs, even in unrelated cases or with unrelated issues can sometimes be a goldmine for your case.

Phil Cave