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Dateline: 6 November 2020 (as of 1000); a summary of the week’s events.
 
SUPREME COURT
 
CAAF

• No. 20-0345/AR. U.S. v. Jacob L. Brubaker-Escobar. CCA 20190618. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following personally asserted issue:


• WHETHER THE CONVENING AUTHORITY'S FAILURE TO TAKE ACTION ON THE SENTENCE AS A RESULT OF THE STAFF JUDGE ADVOCATE'S ERRONEOUS ADVICE DEPRIVED THE ARMY COURT OF JURISDICTION UNDER ARTICLE 66, UCMJ.

 
Once again, an appellate court grant on a Grosty issue. There is no ACCA opinion on their website so we could assume a summary disposition. The ACCA does not publish summary dispositions unlike NMCCA.

 
ACCA

• United States v. Reyes-Lesmes. I have no comments as I’m counsel in the case.

 

• United States v. Badgett. A dilatory post-trial processing case for which the Appellant is given four months credit toward his 25-year confinement.

 
AFCCA

• United States v. Hernandez.

 

• A military judge sitting as a general court-martial convicted Appellant, contrary to his pleas, of one specification of wrongful use of cocaine in violation of Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a.2 The military judge sentenced Appellant to a dishonorable discharge and confinement for 60 days, and the convening authority approved the sentence as adjudged.

 

• On appeal, Appellant raises two issues. First, he asserts the military judge erred by denying his motion to suppress the results of his urinalysis. Second, he argues a sentence including a dishonorable discharge for a single use of cocaine is inappropriately severe. Because we conclude the military judge erred in not suppressing the urinalysis results, we do not reach Appellant’s second issue.

 

• The suppression issue related to the use of a drug dog, or more properly missing facts in the affidavit for a search of Appellant’s urine.
• The court determined the good faith exception did not apply because of “reckless disregard for the truth” in the affidavit.
• The court also dispatched the “cost of suppression” analysis by examining the facts surrounding an alleged single drug use, no impact on mission or unit, the Appellant awaiting appellate leave.
• Note, AFCCA also addressed whether the defense has sufficiently preserved an objection based on arguments before the court.

 

• United States v. Gillian.

 
Appellant was convicted of drug offenses, a DV assault, and communicating a threat; for which he was sentenced to a BCD, 19 months, RiR to E-3, and a reprimand. All the issues raised when done as Grosty’s., several of which were discussed. Finding no errors, the findings and sentence were affirmed.

• The objection to the V-IS was inclusion of “matters directly related to or arising from the offenses” of which convicted. TC at trial agreed some matters were not proper and the military judge excluded them. The judge said, multiple times that,

 

• the court is aware of—and I will repeat this again at the end, the court is aware of what the accused has pled guilty to and what he is being sentenced [for]. So, the court will apply and will give that information the correct weight that it deserves and understands completely that it is only punishing the accused for the offenses to which he has pled guilty. The military judge repeated this sentiment multiple times. He then accepted a second [redacted] version[.]

 

• This was an MJA case so the court was ‘tolerant’ that there might have been more redactions. Perhaps the result might have been different in a member’s case?

 

• United States v. Johnson. Appellant was convicted of a penetrative sexual assault (incapacitation by alcohol) and a penetrative sexual assault (bodily harm); for which the members sentenced him to Dismissal, ten years, and TF. There were three issues raised, but the findings and sentence were affirmed.

 
1. Factual sufficiency on the SA by bodily harm.
2. IAC (failure to submit a RILO timely, harassing behavior toward a victim, and offering a theory that conceded guilt.
3. Cruel and unusual punishment while confined for not getting “proper medical treatment.”
 
            On the RILO. The AF normally suspends court-martial processing if a RILO is submitted within seven days of receipt of charges. If the RILO is submitted later then normally the Government is permitted to proceed to trial. The question then becomes a judgement of the military judge whether to grant continuances awaiting a result on the RILO. Note how this is different to Army practice.

• United States v. (not J.J.) Cool. Members convicted Appellant of two attempts to sexually abuse a child; for which he was sentenced to a BCD and RiR to E-1. The issues will be familiar in a to-catch-a-predator case.

 
1. Factual sufficiency based on an entrapment defense.
2. Denial of expert assistance.
3. Error to instruct on false exculpatory statements. United States v. Quezada, an NMCCA case on this issue was noted in the 30 October 2020 UP.

• United States v. Clark-Bellamy. This is a MJA GP case with a PTA for having CP; for which the Appellant was sentenced to a DD, two years, TF, and RiR to E-1.

 
Again, in a growing trend, one of the issues was a victim-impact statement. For those of us who have been doing CP cases for many years you will recognize the issue—it is the “Vicky” series and the associated statements commonly offered in sentencing. There are other ‘series’ that have been around for years. The court itself cites to several of these cases: United States v Barker, 77 M.J. 377 (C.A.A.F. 2018); United States v. Kearney, 672 F. 3d 81 (1st Cir. 2012); United States v. McDaniel, 631 F.3d 1204 (11th Cir. 2011), see also, United States v. McKinley, No. 201000120, 2013 CCA LEXIS 189 (N-M. Ct. Crim. App. Feb. 28, 2013); United States v. Gallaway, No. 201000248, 2011 CCA LEXIS 390 (A. Ct. Crim. App. Oct. 28, 2011); United States v. Beaty, 70 M.J. 39 (C.A.A.F. 2010).
 
The court notes something not to be forgotten.
 
            1. The statements are not evidence.
            2. Because not evidence, Mil. R. Evid. 403 probably does not apply.
 
See United States v. Hamilton, 77 M.J. 579 (A. F. Ct. Crim. App. 2017) (en banc), aff’d 78 M.J. 335 (C.A.A.F. 2019).
 
            3. “When there is error regarding the presentation of victim statements under R.C.M. 1001A, the test for prejudice “is whether the error substantially influenced the adjudged sentence.” When determining whether an error had a substantial influence on a sentence, this court considers the following four factors: “(1) the strength of the Government's case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question.” “An error is more likely to be prejudicial if the fact was not already obvious from the other evidence presented at trial and would have provided new ammunition against an appellant.” (Citations omitted.)
  
CGCCA
 
NMCCA

• United States v. Anderson. Five pages to explain and correct the MJ’s failure to express forfeitures in a whole dollar amount and the convening authority’s failure to correct the MJ’s error.

 

• United States v. Warren. Two-page summary affirmance with half the “decision” in footnotes explaining a number of procedural and legal errors.

 
In the News—pending appellate cases.
 
 
Worth the Read.

• Report on Investigative Case File Reviews for Military Adult Penetrative Cases Closed in Fiscal Year 2017. Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces, October 2020.

 
·         Prof. Colin Miller (a favorite of mine) blogs: Supreme Court of New Mexico Lays Out Four Factor Test for Forfeiture by Wrongdoing.In Farrington, the court adopted this four factor test for the forfeiture by wrongdoing exception to apply: (1) the declarant was expected to be a witness; (2) the declarant became unavailable; (3) the defendant's misconduct caused the unavailability of the declarant; and (4) the defendant intended by his misconduct to prevent the declarant from testifying.

Appellate Advocacy.
·         Murray, Justin, Policing Procedural Error in the Lower Criminal Courts (August 17, 2020). Fordham Law Review, Forthcoming, NYLS Legal Studies Research Paper No. 3675869, Available at SSRN: https://ssrn.com/abstract=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. I propose 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.

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Phil Cave

MJ Editor