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UP PERISCOPE
 
Dateline: 18 December 2020; a summary of the week.
 
On 15 December 1791
 
“Following ratification by the state of Virginia, the first 10 amendments to the U.S. Constitution, known collectively as the Bill of Rights, become the law of the land.”

 
COURT OF APPEALS OF IOWA
 
            In State v. Spates, (decided 21 October 2020), the Iowa court of appeals had before it a challenge that members of the jury were racially biased. The court applied Pena-Rodriguez and in the process found that the standard of any review had to be objective not subjective and so they remanded the case to the district to apply that standard.
 
[W]hether to receive juror testimony and whether to grant a new trial—should be based on objective circumstances, e.g., what was said; how and when it was said; what was said and done before and after; whether and how the statements relate to evidence in the case; whether and how the statements relate to the issues the jury will decide when reaching a verdict. Conversely, neither determination should depend on the jurors’ subjective evaluations of their own motives—or the motives of other jurors—in voting to convict.
 
            “Yes, I made racial attacks on the accused during deliberations, but that didn’t affect my decision.”—that’s a subjective viewpoint (which we hear all the time).
 
            “Yes, I made racial attacks on the accused during deliberations, and a reasonable member of the public would be left to wonder about that juror’s participation.”—that would be objective?
 
            Colorado, like the military and other states, has a rule which generally prohibits a juror from testifying as to statements made during deliberations in a proceeding inquiring into the validity of the verdict. See Mil. R. Evid. 606(b). In Pena-Rodriguez v. Colorado, the U.S. Supreme Court held that the prohibition gives way where a juror makes a clear statement indicating that he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.
 
            At least one military appellant has sought relief citing to Pena-Rodriguez:
 
In Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 869, 197 L. Ed. 2d 107 (2017), the Court held that "where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no impeachment rule give way in order to permit the trial court to consider the evidence of the juror's statement and any resulting denial of the jury trial guarantee." We perceive no reason why this concern would not apply equally to trial by court-martial. However, in this case, there is no trace of "racial stereotypes or animus," much less a "clear statement." Therefore, we find no abuse of discretion in light of Pena-Rodriguez, although military judges should be cognizant of this new constitutional exception to Mil. R. Evid. 606(b).

United States v. Robertson, 77 M.J. 518, 526 (A. F. Ct. Crim. App. 2017) aff’d in part rev’d in part on other grounds, 77 M.J. 365 (C.A.A.F. 2020).
 
COURT OFAPPEALS-TENNESSEE (Nashville)
 

• State v. Tennessee. A post-trial discovery case. The court begins, “The primary issue in this case involves the State’s delayed disclosure of obviously exculpatory evidence.” Overall a nice case discussing Brady-plus’s [[1]] application to post-trial matters.

 

• Prof. Colin Miller observes that, “In Brady v. Maryland, the United States Supreme Court held that the State has an affirmative obligation under the Due Process Clause to timely disclose material exculpatory evidence. There is a ton of precedent analyzing when evidence is material and exculpatory. Conversely, there is sparse case law regarding what is "timely" disclosure. But Thursday's opinion of the Court of Criminal Appeals of Tennessee in State v. Allen addressed this latter question.”

 

• “In this case, what Ms. Allen stated in the first email—that Defendant did not rape her and that another man did—could not have simply been a mistake made by Ms. Allen. Ms. Allen was either telling the truth or lying in that email. If she was telling the truth in the email, then she was lying in her preliminary hearing testimony. If she was telling the truth in her testimony, she was lying in her email. Because the prosecution suppressed the obviously exculpatory first email until after Ms. Allen’s death, Defendant was never able to question Ms. Allen about its veracity....” Slip op. at 24.

 

• “Here, the emails were obviously exculpatory, and the State had a duty to disclose them without a request by Defendant. Although the State provided the emails in discovery before trial, it suppressed the emails for over two years during which time Ms. Allen died.” Slip op. at 24.

 

• On a separate the court addressed the prosecutor’s use of the word “victim” throughout the case. In a pretrial ruling on a motion to preclude that the court and ordered the use of “alleged victim.” Despite that order the prosecutor used the reference to “victim” “for a total of forty times.” While not finding that error dispositive, the court addressed the error under a cumulative error analysis. The court found this error combined with the Brady error cumulatively “denied Defendant the right to a fair trial.” Slip op. at 35.

 
THE FOURTH
 

• Ward v. United States, 2020 U.S. App. LEXIS 38663 (4th Cir. Dec. 10, 2020).

 
In these 28 U.S.C. § 2241 proceedings, Joseph M. Ward III petitioned in the Eastern District of Virginia for habeas corpus relief from his military court convictions and sentence claiming violations of his Fifth Amendment right to due process and Sixth Amendment right to the effective assistance of counsel. The district court dismissed Ward’s § 2241 petition under Federal Rule of Civil Procedure 12(b)(1) for lack of jurisdiction over the due process claim and under Rule 12(b)(6) for failure to state a plausible ineffective assistance claim. See Ward v. United States, No. 1:18-cv-00569 (E.D. Va. Mar. 27, 2019), ECF No. 10 (the “Dismissal Order”).  As explained below, we affirm the dismissal of Ward’s § 2241 petition but recognize that Rule 12(b)(6) is the proper basis for the dismissal of both claims.
 

• This appears to be a last gasp of former Captain Ward, the appellant in United States v. Ward, No. 38376, 2014 CCA LEXIS 815 (A. F. Ct. Crim. App. Oct. 23, 2014) petition den. 74 M.J. 268 (C.A.A.F. 2015).

 

• A secret prize to the person who catches something even more interesting about this case than is obvious. The following may NOT apply for the prize: ERF, DHMLS, WEC.

 
ACCA
 

• United States v. Guyton.

 

• Appellant claims the military judge erred in his rulings regarding the composition of the panel members; the military judge abused his discretion in denying admission of the victim's letter to appellant; and the military judge abused his discretion in granting the admission of an excerpt from appellant's video interview with law enforcement. As we explain below, we find none of these claims merit relief. However, we find the government's unexplained dilatory post-trial processing of appellant's case warrants reducing his sentence to confinement by four months.

 

• United States v. Whiteeyes. Appellant raised four issues and one merited relief. The issues of Mil. R. Evid. 404(b) Mil. R. Evid. 304(c). and a challenge to a member saw no relief—he did get one month off the sentence under United States v. Tardiff.

• United States v. Hasan. The findings and death sentence are affirmed by the Court sitting en banc. Because this is a death penalty case, review by CAAF is mandatory.

 
AFCCA
 

• United States v. Meier.

 
Appellant raises four assignments of error on appeal: (1) whether the military judge abused his discretion in denying testimony from a defense witness, JG, in presentencing; (2) whether the military judge erred by deducting 37 days of confinement credit for Appellant’s illegal pretrial punishment prior to announcement of sentence; (3) whether the report of result of trial (RRT), action of the convening authority, and court-martial order failed to properly reflect Appellant’s pretrial confinement credit; and (4) whether the staff judge advocate’s recommendation (SJAR) failed to provide accurate and proper advice to the convening authority.
 

• United States v. Ker.

 
On appeal, Appellant raises three assignments of error: (1) whether Appellant’s plea as to Specification 4 of the Charge was improvident based on the Care inquiry;4 (2) whether Appellant’s trial defense counsel were ineffective in presentencing; and (3) whether Appellant’s plea was improvident based on an alleged lack of mental responsibility or, in the alternative, because his diminished mental state made him susceptible to undue pressure from his defense counsel.5 Finding no error materially prejudicial to Appellant, we affirm the findings and sentence.
 

• The court gaffs-off, IMHO, a serious ethics issue that can arise when trial defense counsel responds to a request for an affidavit rebutting IAC claims—what can you say—what is the scope of that affidavit. Now, it is not clear the appellate defense counsel was as helpful as possible either without some specific. Responding to an IAC claim is an exception to the attorney-client privilege but does that mean the attorney can respond with anything or everything some of may not be relevant to the issue?

 
As an initial matter, we note Appellant’s general objections to the declarations of his counsel as referenced in his reply brief.11 Specifically, we are not persuaded by Appellant “generally object[ing] to both declarations, to the extent the responses exceed the [c]ourt’s order, specifically for releasing confidential as well as secret information known by defense counsel relating to the representation that was unnecessary to rebut the claims of ineffective assistance of counsel.” Additionally, we are not persuaded by Appellant “generally object[ing] to both declarations, to the extent the responses exceed the [c]ourt’s order, specifically for releasing information privileged under [Mil. R. Evid.] 302.” After reviewing trial defense counsel’s declarations, we find they were sufficiently detailed and necessary to address each issue raised by Appellant.
 

• United States v. Mar.

 
First the court specified two issues.
 
IN LIGHT OF RULE FOR COURTS-MARTIAL (R.C.M.) 705(C)(1)(B), DID THE MILITARY JUDGE ERR WHEN SHE:
a. FAILED TO ADVISE APPELLANT THAT HIS AGREEMENT TO “WAIVE ALL WAIVABLE MOTIONS” COULD NOT BE ENFORCED TO PREVENT HIM FROM RAISING AN R.C.M. 707 SPEEDY TRIAL MOTION;
b. IMPLIED THAT “IN ORDER TO GET THE BENEFIT” OF HIS PRETRIAL AGREEMENT, APPELLANT HAD TO “GIVE UP MAKING THESE MOTIONS,” WHICH INCLUDED AN R.C.M. 707 SPEEDY TRIAL MOTION; AND
c. ADVISED APPELLANT THAT HIS FAILURE TO “WAIVE ALL WAIVABLE MOTIONS,” IMPLICITLY INCLUDING HIS R.C.M. 707 SPEEDY TRIAL MOTION, WOULD RESULT IN THE CANCELATION OF HIS PRETRIAL AGREEMENT? IF SO, IS APPELLANT ENTITLED TO RELIEF?
 
DID APPELLANT RECEIVE INEFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL DEFENSE COUNSEL FAILED TO SEEK RELIEF FOR A POTENTIAL VIOLATION OF APPELLANT’S RIGHT TO SPEEDY TRIAL UNDER RULE FOR COURTS-MARTIAL 707? IF SO, IS APPELLANT ENTITLED TO RELIEF?
 
Second, the court decided not to decide the issues but remanded the case for corrections in the post-trial processing. The processing issue is the ongoing problem of a CA failing to take required actions.
 

• United States v. Newt.

 
Appellant raises three issues through counsel: that (1) the military judge erred in denying a defense challenge for cause of one of the members; (2) the military judge abused his discretion in denying Defense-requested sentencing instructions; and (3) the record is not substantially verbatim due to the military judge deciding contested issues during Rule for Courts-Martial (R.C.M.) 802 conferences. The court added a Moreno issue. But the find no errors and affirmed the findings and sentence.
 
NMCCA
 

• United States v. Irvin., __ M.J. ___ (N-M. Ct. Crim. App. Dec. 17, 2020).

 

• Appellant was convicted, contrary to his pleas, of unauthorized absence, willfully disobeying a superior commissioned officer, two specifications of failure to obey a lawful order, two specifications of wrongful use of cocaine, breaking restriction, and willfully discharging a firearm under such circumstances as to endanger human life[.]

 

• There are “five assignments of error [AOE],” which the court “renumber[ed] as follows: (1) the military judge abused her discretion by admitting evidence obtained from a search of Appellant’s cellular phone in violation of the Fourth Amendment; (2) the military judge abused her discretion by admitting urinalysis evidence without proof of a continuous chain of custody that preserved the evidence in an unaltered state; and the evidence is factually insufficient to support Appellant’s convictions of: (3) Specification 1 of Charge I (failure to obey lawful order), (4) Specification 4 of Charge II (willful discharge of a firearm under such circumstances as to endanger human life), and (5) Specification 2 of Charge VI (wrongful use of cocaine). We find merit in Appellant’s second and fourth AOEs. We set aside his conviction of Specification 2 of Charge VI—mooting his fifth AOE, set aside his conviction of Specification 4 of Charge II, and affirm its lesser-included offense. We affirm the remaining findings and, upon reassessment, affirm the sentence.

 

• AOE 2. Chain of custody of the urine sample obtained during a “medical urinalysis” for treatment purposes. There was no chain of custody documents or the use of sealed tamper-proof bottles.

 

• “We have previously discussed the dividing line between a mere gap in the chain of custody and the utter failure to provide sufficient proof that the evidence is what it purports to be. See United States v. Hinojos[.] The court distinguishes United States v. Maxwell, 38 M.J. 148 (C.M.A. 1993).

 

• AOE 4. Was the conviction of willful discharge of a weapon under circumstances as to endanger human life factually sufficient? Appellant fired three shots from a pistol toward the sky while driving at night on a backroad of a rural Mississippi town. The court adopted reasoning from United States v. Burns, No. S32084, 2013 CCA LEXIS 1050 (A. F. Ct. Crim. App. Dec. 18, 2013) (unpub.), aff’d 73 M.J. 407 (C.A.A.F. 2014).

 

• This was a SPCM, so the court affirmed the sentence.

 

• United States v. Taman. Appellant was convicted of receiving and viewing CP and soliciting and advising the production of CP. On appeal he alleges his conviction is an unconstitutional imposition on his rights to speech and privacy because the girl he interacted with was over 16 and he could have had a sexual relationship with her. (Note, this is not a ‘why is it a crime for me to take nude photos of my 17-year-old wife’ offense.)

 

• United States v. Cooper, __ M.J. ___ (N-M. Ct. Crim. App. 2020). This is an IAC case with a somewhat sinuous history.

 

• The NMCCA first set-aside the findings and sentence because a DuBay judge found appellant’s TDC had failed to submit an IMC request.
• Upon certification to CAAF that court determined Appellant had waived his right to IMC during the standard do you know your counsel rights colloquy. The case was returned to NMCCA for a full Article 66, UCMJ, review.
• NMCCA has, again set aside the findings and sentence for IAC related to the IMC request. The court determined that they had the discretion to disregard the waiver relying primarily on United States v. Chin, 75 M.J. 220 (C.A.A.F. 2016).

 
IN THE NEWS—PENDING APPELLATE CASES.
 

• (Update) The MassLive reports,

 
o   Lance Cpl. Samuel London, who served as a United States Marine Corps reservist, is facing a multitude of charges brought by the Naval Criminal Investigative Service and U.S. Marine Corps concerning the death of a 19-year-old Hopedale High School graduate, Daniel J. Hollis on Sept. 28.
o   “The Marine Corps can confirm Lance Corporal London has been charged with Murder with intent to kill or inflict great bodily harm,” Major [RH], spokesman for Marine Corps Reserves told MassLive. Hollenbeck pointed out that at this time the charges are merely an accusation and the accused is innocent until proven guilty.
o   Apparently a grand jury declined to indict in this case. The DA reports, ““The investigation that preceded the Grand Jury’s vote was incredibly thorough and painstakingly detailed[.]"
WORTH THE READ.
 

• Rodrigo M. Curuco, In Order to Form a More Perfect Court: A Quantitative Measure of the Military’s Highest Court’s Success as a Court of Last Resort. 41 VERMONT L. REV. 71 (2016).

 

• Appellate Advocacy Blog notes, “Earlier this week, Judge Bergeron posted right here at the Appellate Advocacy Blog about pointers for zoom oral arguments based on his experience serving as an appellate judge for dozens of virtual arguments.  Check out his tips HERE.”

 
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[1] “Brady-plus” is my shorthand reference to Brady and its progeny in both federal and military case law and avoids a string cite.

Phil Cave

MJ Editor