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Dateline: 4 September 2020 (as of 0900).

​CAAF
 
            02092020—the court decided (4-1) United States v. Watkins. The court granted review on three issues and found a denial of a right to counsel of choice. The NMCCA decision is here [https://www.jag.navy.mil/courts/documents/archive/2019/WATKINS_201700246_UNPUB.pdf].

• A conflict of interest exists where the interests of an attorney and defendant diverge on a material factual or legal issue, or a course of action. Threats by regional trial counsel [RTC] and a regional trial investigator towards civilian defense counsel created a conflict of interest between civilian counsel and Appellant. Did the military judge err in denying civilian counsel’s motion to withdraw?
• II. The Sixth Amendment guarantees an accused the right to retain counsel of his own choosing. Before trial, and after his civilian counsel moved to withdraw—citing a perceived conflict of interest—Appellant asked to release his civilian counsel and hire a different counsel. Did the military judge err by denying this request?
• III. Did the lower court err in ratifying the military judge’s denial of Appellant’s request for conflict free counsel, where it: (A) found the request was in “bad faith,” based on alleged misbehavior by Appellant occurring before the RTC’s unexpected threats; and, (B) treated the military judge’s finding that Appellant’s request for counsel was “opportunistic,” as a finding of fact instead of a conclusion of law?

NMCCA
 
            31082020--United States v. Scott,

• Appellant was convicted, contrary to his pleas, of two specifications of at-

tempted sexual assault of a child and one specification of attempted sexual
abuse of a child, in violation of Article 80, Uniform Code of Military Justice
[UCMJ]. The military judge merged the two specifications of attempted sexual
assault of a child for findings and sentencing.

• Appellant asserts four assignments of error [AOEs], which we have renumbered:

(1) the evidence is not factually sufficient because the Government did not prove beyond a reasonable doubt that Appellant was not entrapped; (2) Appellant received ineffective
Assistance from his trial defense counsel [TDC]—his civilian lead defense counsel, Mr.
Charlie (a pseudonym); and his detailed military defense counsel, Captain Lima (also a pseudonym)—and his substitute post-trial military counsel, Capt Oscar; (3) Capt Lima was improperly excused at trial; and (4) the charges of which he was convicted were unreasonably multiplied. We find no prejudicial error and affirm.
 
31082020--The court has decided United States v. Doyle,

• Appellant was convicted, pursuant to his plea, of one specification of aggravated assault with means likely to produce death or grievous bodily injury in violation of Article 128, Uniform Code of Military Justice [UCMJ], 10 U.S.C. § 928 (2012 & Supp. IV 2017) for “strangling” his girlfriend, D.G. Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), Appellant asserts both that the sentence to be dismissed from the Naval Service was inappropriately severe and that the trial counsel “enflamed the military Judge with improper sentencing argument” by referring to dismissed charges and by referring to Appellant as a “monster.”
• The court found the issues without merit, however, [W]e specified the following issue:
• whether there is an adequate factual basis in the record of trial to support Appellant’s guilty plea to aggravated assault when Appellant admits to “strangling” D.G. but that term is neither defined by the military judge nor used in a context to indicate grievous bodily harm was the “natural and probable consequence” of that action? After considering the parties’ briefs, we set aside Appellant’s conviction and sentence, return the case to the convening authority, and authorize a rehearing.
• The plea appeared to be going well until an issue of how much force was used until counsel “injected an inconsistency into Appellant’s plea to aggravated assault.” NMCCA finds the military judge did not then sufficiently resolve the inconsistency or reject the plea. Slip op. at 12.
• Good discussion about strangulation. We see several cases involving sex and the ‘choking game’ and more robust sex.

 
ACCA
 
03092020—the court decided United States v. Campbell., which is another case about what to do, what to do, when the court sends the case back to the convening authority.

• [The court] set aside appellant’s convictions for abusive sexual contact and sexual assault, in violation of Article 120, Uniform Code of Military Justice [UCMJ], 10 U.S.C. § 920; affirmed the guilty finding of one specification of wrongful use of a controlled substance, to which appellant pleaded guilty; set aside the sentence; and remanded with explicit options for the convening authority. The convening authority was permitted to “1) order a rehearing on Charge I and its specifications (the set aside Article 120, UCMJ offenses) and the sentence; or 2) dismiss Charge I and its specifications and order a rehearing on the sentence only.” United States v. Campbell, ARMY 20180107, 2020 CCA LEXIS 74 (Army Ct. Crim. App. 6 March 2020).
• In consonance with victim’s wishes not to testify further at any retrial, the convening authority prudently found a rehearing on the Article 120 offenses to be impractical, and dismissed Charge I and its Specifications. Such action was one of the options specified by this court. However, based on the staff judge advocate’s faulty advice, the convening authority then proceeded to determine a sentence rehearing to be impractical and approved a sentence of “no punishment” for appellant’s Article 112a, UCMJ, conviction.

 
 
 
 
 
 
28082020—the court decided United States v. Black, a contested MJA case for offenses against a child.

• Appellant alleges that he was deprived of a fair trial because "the military judge had an obligation under [Rule for Courts-Martial] 902(a) to disqualify himself from the proceedings."' Appellant also cites to Rule for Courts-Martial [R.C.M.] 902(b)(1), arguing actual bias on the part of the military judge entitles him to relief. We disagree. First, we conclude appellant fails to establish actual bias under R.C.M. 902(b)(l). Second, regarding appearance bias under R.C.M 902(a), we find appellant waived the issue and, even assuming appellant did not waive the claim, we find no error by the military judge, plain or otherwise.
• Appellant alleges for the first time on appeal that the military judge's AW ruling shows a "trier of fact with pre-established beliefs as to the credibility of particular witnesses and the guilt of the accused." As a result, appellant argues "the military judge had an obligation under R.C.M. 902(a) to disqualify himself from the proceedings." Appellant's claim rests entirely on a comparison of the words used by the military judge in his LB/RB ruling and his AW ruling.

 
26082020—the court decided United States v. Golden, an MJA GP.

• A military judge sitting as a special court-martial convicted appellant, consistent with his pleas, of three specifications of false official statement, one specification of wrongful appropriation, one specification of forgery, and one specification of fraud, in violation of Articles I 07, 121, 123, and 132, UCMJ, 10 U.S.C. $$ 907, 921, 923, and 932. Consistent with appellant's plea agreement, the convening authority approved the adjudged sentence of reduction to the grade of E-1, confinement for forty days, and a bad-conduct discharge.
• Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), appellant asserts his findings of guilty of three specifications of making false official statements (Specifications 1, 3, and 4 of Charge II) are unreasonably multiplied for purposes of findings and sentencing. We agree in part as to the findings, but additionally find the military judge abused his discretion by accepting appellant's plea of guilty to Specification I of Charge II.
• Sentence affirmed.

 
26 August 2020—the court decided United States v. Pimentel-Torres, to be read if you are interested in another dilatory processing case.
 
AFCCA
 
            02092020—the court decided United States v. Willman.

• Appellant was found guilty in accordance with a PTA.
• Appellant raises two issues pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982): (1) whether Appellant is entitled to relief because he was compelled to give testimonial information after invoking his right to an attorney and refusing to answer questions; and (2) whether Appellant suffered cruel and unusual punishment in violation of the Eighth Amendment3 and Article 55, UCMJ, 10 U.S.C. § 855, when he was not given proper medical treatment while in confinement. Alternatively, Appellant contends that the conditions of his post-trial confinement render his sentence inappropriately severe, warranting relief under Article 66(c), UCMJ, 10 U.S.C. § 866(c).
• Appellant contend[ed] he is entitled to relief because he was compelled to give testimonial information when AFOSI agents unlawfully ordered him to unlock his electronic devices after he invoked his right to an attorney and refused to answer questions.

 
02092020—the court decided United States v. Lull, in 84 pages.

• Appellant raises 24 issues on appeal, 17 of which are assignments of error. In addition to issues (1) through (24), we consider two issues identified during this court’s Article 66(c), UCMJ, 10 U.S.C. § 866(c), review. And,
• We find Appellant’s convictions both legally and factually sufficient, and no error materially prejudicial to the substantial rights of Appellant occurred. Thus, we affirm the findings and sentence.
• One of the issues is Reservist jurisdiction.

 
02092020—the court decided United States v. Harris,

• Appellant raises four issues on appeal: (1) whether the evidence is legally and factually sufficient to support Appellant’s conviction for sexual assault against Senior Airman (SrA) LS; (2) whether the evidence is legally and factually sufficient to support Appellant’s conviction for abusive sexual contact3 against Airman First Class (A1C) DG; (3) whether the military judge erred by failing to instruct the court members that SrA LS was capable of consenting to the alleged sexual act; and (4) whether the convening authority was constitutionally required to direct a post-trial session or a new trial in light of SrA LS’s testimony having materially changed months after Appellant was convicted.4 In addition, we consider whether Appellant is entitled to relief for facially unreasonable appellate delay. We find no error materially prejudicial to Appellant’s substantial rights, and we affirm the findings and sentence.

 
03092020—the court decided United States v. Ward,

• Appellant raises two issues on appeal: (1) whether the convening authority abused his discretion when he denied Appellant’s request to defer the reduction in grade without articulating his reasons for doing so; and (2) whether Appellant is entitled to a new post-trial process because the staff judge advocate’s recommendation (SJAR) to the convening authority misstated the maximum imposable punishment and incorrectly inflated Appellant’s misconduct. We find no error materially prejudicial to Appellant’s substantial rights, and we affirm the findings and sentence.

 
03092020—the court decided United States v. Shears,

• On appeal, Appellant personally raises two issues pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982): (1) whether the military judge abused his discretion in admitting certain personnel records during presentencing; and (2) whether his sentence is inappropriately severe. We find no error that materially prejudiced Appellant’s substantial rights and affirm.
• Which the court took time to write on. This is noteworthy when it happens, and occasionally noteworthy because the court—not here—grants relief.

 
28 August 2020—the court decided United States v. Perkins, a case to be read if you are interested in a failed providence and dilatory processing case.
 
In the News—pending appellate cases.

• The Virginian-Pilot reports that a Langley AFB airman was convicted at special court-martial for sexual assault. His sentence is one-year confinement, RIR 2 E-2, and a reprimand. Does this fit within Article 66(b)(1)(A)?

 

• Navy Times reports that “A U.S. Navy senior chief is facing court-martial over allegations of rape and aggravated assault, including an incident where prosecutors say he kicked a pregnant woman in the stomach, according to court records. [He] is accused of kicking the woman in San Diego in September 2017, and of pointing a loaded gun and a knife at a woman in Waldorf, Maryland, roughly eight months later, according to his charge sheet.” Trial is scheduled for 2 November 2020 at Washington Navy Yard.

 

• Navy Times is now reporting that, “Arson is suspected as the cause of a July 12 fire that left extensive damage to the amphibious assault ship Bonhomme Richard docked off San Diego, and a U.S. Navy sailor was being questioned as a potential suspect, a senior defense official said Wednesday.”

 

• Salem News has an article about “SEALs pulled from Iraq.” From a lengthy article here is why there is at least one possible appellate case.

 
Worth the Read.
           
Visger, Mark (2020) "The Canary in the Military Justice Mineshaft: A Review of Recent Sexual Assault Courts-Martial Tainted by Unlawful Command Influence," Mitchell Hamline Law Journal of Public Policy and Practice: Vol. 41: Iss. 1, Article 3. Available at: https://open.mitchellhamline.edu/policypractice/vol41/iss1/3. (Note, United States v. Bergdahl.)
Bavli, Hillel, An Aggregation Theory of Character Evidence (July 19, 2020). Available at SSRN: https://ssrn.com/abstract=3664837 or http://dx.doi.org/10.2139/ssrn.3664837.

• A central principle of U.S. law is that individuals should be judged in court based on their actions and not on their character. Federal Rule of Evidence 404 therefore prohibits evidence of an individual’s previous actions to prove that the individual acted in accordance with a certain propensity or character. But courts frequently depart from or altogether ignore this rule, resulting in arbitrary judgments based on an individual’s character or prior acts rather than on evidence regarding the events at issue in a case. This raises serious constitutional and fairness concerns, deepens racial and economic inequality in the criminal justice system, and entails a wide range of other harmful effects.
  
  I address this problem from a new angle — a scientific one. I develop a theory of “aggregation evidence” based on principles of estimation and data aggregation in statistics. I apply this theory to analyze the effects of character evidence on accuracy, and to understand why and when courts depart from the rule against other-acts character evidence. Based on this analysis, I develop a principled approach to character evidence that accounts for such departures and resolves the uncertainty and arbitrariness surrounding the courts’ current haphazard approach. I then demonstrate broad and significant implications of the proposed framework, including minimizing error in case outcomes and reducing inequality based on race and economic disadvantage in the criminal justice system.

 
Monique Chouraeshkenazi, Forensic Psychology, Mental Illness, and Military Crimes. Psychology Today, 29 August 2020 [https://www.psychologytoday.com/ca/blog/in-the-public-interest/202008/forensic-psychology-mental-illness-and-military-crimes].
 
The Legal History Blog reviews Christian G. Samito, Equal Rights and the Experience of Military Justice for African American Soldiers, a chapter in Becoming American Under Fire[.]
https://legalhistoryblog.blogspot.com/2015/06/samito-on-military-justice-and-black.html

• This chapter uses courts-martial records to examine how black Civil War soldiers vigorously refuted past lives as slaves now to claim rights as freedmen and citizens. Black mutineers sought to change laws which distinguished between white and black people and to bring official legal practices into conformity with their vision. Black soldiers turned the court-martial into an important way station on the road to freedom and citizenship, even where it punished those who violated military law. Besides revealing a surprising level of due process, general courts-martial records show the extent to which black soldiers situated themselves as American citizens by opposing discrimination, defying legal precedents that failed to acknowledge their equality, and advancing their interpretation of legal meanings and practices. Moreover, the experiences black troops, including many former slaves, had in courts-martial proceedings helped to shape their postwar agenda of legal change. Once in the courtroom, black soldiers encountered, often for the first time, the concepts of the rule of law, equality before the law, and due process protection, all of which were very different from arbitrary discipline under slavery and on plantations. Courts-martial in the army provided black soldiers with an unexpected, and neglected, encounter with core ideas that helped inform their demands during Reconstruction for color-blind justice as a component of American citizenship and their sense that the law could serve as a bulwark to protect their newfound freedom and changed status.

 
An attempt to order a cell phone owner to provide his password to the phone is testimonial under the Fifth Amendment and the ‘forgone conclusion doctrine’ does not apply. Garcia v. State, 2020 Fla. App. LEXIS 12232 (Fla. 5th DCA Aug 28, 2020).
 
The trial court here held that the providing of the passcode was non-testimonial, but it gave no explanation for its conclusion or ruling other than “the Stahl decision is controlling here.” In Stahl, law enforcement obtained a warrant to search the defendant’s locked phone, but the defendant refused to provide them with his passcode. 206 So. 3d at 128. The State filed a motion to compel production of the passcode, which the trial court denied, finding the production of the passcode to be testimonial. Id. The Second District Court quashed the order, holding that compelling the defendant to reveal his passcode was not testimonial because the passcode was “sought only for its content and the content has no other value or significance.” Id. at 134.

• We respectfully disagree with the Second District Court. Distilled to its essence, the revealing of the passcode is a verbal communication of the contents of one’s mind. Commonwealth v. Davis, 220 A.3d 534, 548 (Pa. 2019) (“As a passcode is necessarily memorized, one cannot reveal a passcode without revealing the contents of one’s mind.”). We agree with Garcia that the order under review requires that he utilize the contents of his mind and disclose specific information regarding the passcode that will likely lead to incriminating information that the State will then use against him at trial. We therefore conclude that the compelled disclosure of his passcode is testimonial and is protected by the Fifth Amendment. This, however, does not end our analysis.

 
Brought to you from John Wesley Hall’s excellent fourthamendment.com blog.
 
Research & Writing.
 
Prof. Dysart at Appellate Advocacy Blog recommends Simon, Diana, The Power of Connectivity: The Science and Art of Transitions (July 30, 2020). 18 Legal Comm. & Rhetoric: JALWD __ (Fall 2021 Forthcoming), Arizona Legal Studies Discussion Paper No. 20-36, Available at SSRN: https://ssrn.com/abstract=3664846.

• Do transitions really matter? Yes. This article explores the impact of transitions in legal writing beyond simply improving flow and readability. First, with the help of cognitive psychologists and neuroscientists, the science behind transitions is addressed, because science shows that transitions increase comprehension and improve processing times. Second, the omnipresence and significance of transitions is addressed with the help of singer-songwriter Justin Timberlake and his song, “SexyBack” and comedian Brian Regan and his stand-up bit, “I Walked on the Moon.” Third, various types of transitions in legal writing are addressed with a special focus on the “magic of three” in persuasion in both legal writing and beyond.

Phil Cave

Military Justice Editor