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Dateline: 11 September 2020 (as of 0900).
 
CAAF
 
            Reminder, CAAF is back to in-person oral argument. The Navy and Army have been back to in-person arguments since August.

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ACCA
 
            04092020—the court decided United States v. Laviolet.

• Appellant asks this court to disapprove his punitive discharge because mistreatment by a prison guard violated his rights against cruel and unusual punishment under the Eight Amendment to the U.S. Constitution and Article 55, Uniform Code of Military Justice (UCMJ), 10 U.S.C. $855. We hold that, while appellant endured inexcusable behavior during his confinement, the mistreatment appellant suffered is insufficient to establish conduct amounting to cruel and unusual punishment.

 
04092020—the court decided United States v. Worsham.

• Appellant asserts the military judge, sitting as a general court-martial, abandoned his impartial judicial role when he recalled two witnesses and called an additional witness in the midst of deliberations. Appellant also claims his defense counsel were ineffective by failing to object to this decision by the military judge and in failing to object to the military judge's questioning of these witnesses. These issues warrant discussion, but no relief.
• Appellant claims the military judge, in recalling NAG and BW, and calling NG for the first time, after beginning deliberations, abandoned his neutral and impartial role "to re-try the government's case," or at least such would appear to a reasonable observer. Slip op. at 3.
• As an initial matter, we find that the military judge did not err merely by pausing his deliberations to hear additional testimony from NAG and BW, or by calling NG. Article 46, UCMJ, and Mil. R. Evid. 614, provide a military judge, sitting as a court-martial, wide latitude in calling or recalling witnesses. This includes calling a witness not called by either the prosecution or defense. See R.C.M. 801(c). This also includes reopening the case during deliberation in order to obtain additional evidence. See R.C.M 921(b).

 
AFCCA
 
            09092020—the court decided United States v. Wilson. This one is interesting for several reasons.

• This case was originally submitted to us on its merits; we specified an issue for the parties to address: whether Appellant’s sentence should be set aside based upon trial counsel arguing facts not in evidence. While we find error, we conclude no substantial right of Appellant was materially prejudiced, and we affirm the findings and sentence.
• We agree assistant trial counsel erred in her sentencing argument by repeatedly asserting Appellant had “facilitated the destruction of” and “destroyed” the careers and “future career opportunities” of other Airmen, as those claims were wholly unsupported by the evidence at trial. Slip op. at 6.
• Assistant trial counsel’s career-destruction argument amounted to plain error, as her repeated references to facts not in evidence and unreasonable inferences drawn therefrom were both plain and obvious. Slip op. at 8. Although not plain enough for the military judge to interrupt or defense counsel to make objection.
• The error in assistant trial counsel’s argument was significant as it both exaggerated Appellant’s culpability and was drawn from evidence never admitted in Appellant’s trial. Moreover, the military judge had already instructed the members not to draw any inferences from the fact Amn DW testified in shackles. By virtue of this instruction—and trial defense counsel’s objection which precipitated it—assistant trial counsel was aware that the consequences Amn DW, at least, had faced were inappropriate for the members to consider. Despite this awareness, assistant trial counsel argued to the members the exact sort of inference the military judge had instructed the members not to make. Because trial defense counsel never objected, no curative measures were taken during the argument. On the other hand, we recognize the lack of objection as “‘some measure of the minimal impact’ of a prosecutor’s improper comment.” Slip op. at 8.

 
09092020—the court decided United States v. Davy. It’s an IAC on sentencing case where the court discusses but does not grant relief on the Grostefon claim.

•  On appeal, Appellant raises one issue pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982): whether Appellant was denied effective assistance of counsel because trial defense counsel failed to present evidence of Appellant’s addiction to alcohol in mitigation. We find Appellant has not shown that his counsel were ineffective in their representation, and affirm the findings and sentence.

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

• The USNI has linked to [T]he 28 August 2020, Congressional Research Service report, Military Courts-Martial Under the Military Justice Act of 2016.

 

• Laura Caughfield, Requests for Extension of Time on Appeal and the Standards of Appellate Practice. Appellate Advocacy Blog, 8 September 2020. In discussing advocates and extension requests the writer observes,

 
If these general principles are not enough to convince you to act fairly with opposing counsel, then the potential loss of credibility should. Courts do not appreciate it when opposing counsel oppose reasonable requests for extension of time. As the Ninth Circuit explained, "Such uncompromising behavior is not only inconsistent with general principles of professional conduct, but also undermines the truth-seeking function of our adversarial system." Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1263 (9th Cir. 2010).

• It may be now worth revisiting Dave Schlueter’sl, Reforming Military Justice: An Analysis of the Military Justice Act of 2016. 49 St. Mary’s L. J. 1 (2017). You might also read the 28 August 2020 report of the Congressional Research Service, Jennifer K. Elsea and Jonathan M. Gaffney, Military (sic) Courts-Martial Under the Military Justice Act of 2016 (28 August 2020), for a taste of where we have come.

 

• MAJ S. P. Mahard, Where the Personal Jurisdiction Ends: A Bright-Line Rule for Determining When the Military Loses in Personam Jurisdiction. 228(2) MIL. L. REV. x (2020) [https://tjaglcspublic.army.mil/where-the-personal-jurisdiction-ends].

 
o   Part II reviews the history and foundation of court-martial jurisdiction, providing a framework for an analysis of the CAAF’s law on personal jurisdiction. This portion of the article begins with an overview of military jurisdiction before analyzing the Due Process Clause of the Fifth Amendment and Article I’s Make Rules Clause. Both of these constitutional components are featured prominently in any understanding of a court-martial’s reach. Part II also discusses the relevant Supreme Court precedents, discussing why these decisions underscore a more narrow view of a court-martial’s jurisdiction.11 Ultimately, this section provides the constitutional backdrop of the CAAF’s law on court-martial jurisdiction.
o   Part III analyzes the development of the CAAF’s jurisprudence on when personal jurisdiction ends, starting with the court’s landmark decision in 1985.12 This Part analyzes Howard and its progeny, focusing on the court’s reasoning and analysis of in personam jurisdiction. This section also examines the CAAF’s most recent retreat from its test in United States v. Nettles in 2015 and Christensen in 2018.13 Notably, this article does not address when the military loses in personam jurisdiction as a result of court-martial punishment, desertion, or fraudulent separation. These specific areas of personal jurisdiction have spawned their own jurisprudence. Rather, this article focuses on a service member’s discharge prior to their expiration of term of service (ETS).14
o   Part IV provides a critical analysis of the CAAF’s current three-part test. The test, based on sections 1168(a) and 1169, has proved difficult in practice for the court to apply—as the CAAF seemingly acknowledged in Nettles and Christensen.15 Part IV critiques each part of the test, concluding that the CAAF’s reliance on personnel statutes is misplaced and inconsistent with the legislative history and purposes of sections 1168(a) and 1169.16 Overall, the current jurisprudence fails to provide straightforward guidance to the field, and the Nettles “reason or policy” gloss fails to adequately address the shortcomings of the test.17 Consequently, a wholesale change is necessary.
o   Part V proposes a solution: personal jurisdiction for active-duty service members ends at 2400 on the date of a valid discharge certificate. This bright-line rule construes personal jurisdiction narrowly and provides a workable test for practitioners in the field. The CAAF should acknowledge that Howard was a “wrong turn” in its jurisprudence and chart a new way forward.18 Part V advocates for a simple approach that is not dependent on delivery of a Department of Defense (DD) Form 214, military finance, or clearing a military post—the three elements of the current test. Without the action of Congress or the Service Secretaries, the CAAF should modify the three-part test. The court’s case law on valid discharges is robust enough to weed out possible hitches, including fraud, reenlistments, and other potential pitfalls that might stymie a bright-line rule.19 This article’s proposed test would provide judge advocates and commanders the guidance they crave and will eliminate the many issues they face in determining the precise reach of a court-martial.
·         MAJ A. Wolrich, Giving the Referee a Whistle: Increasing Military Justice Legitimacy by Allowing Military Judges to Reject Plea Agreements with Plainly Unreasonable Sentences. 228(2) MIL. L. REV x (2020).
·         MAJ B. D. Lohnes, Rethinking Fraternization Regulations. ARMY LAWYER 3/2020 [https://tjaglcspublic.army.mil/rethinking-fraternization-regulations?inheritRedirect=true]. The conclusion would be considered upsetting by many.
 
o   The time has come for the Army to reconsider the need for status-based fraternization prohibitions. Days of maintaining social class structure by separating officers and enlisted Soldiers are long gone, yet the Army’s current fraternization policy still traces its lineage to the maintenance of social distinctions in the armies of King Gustavus Adolphus. The eradication of this antiquated custom suffered a setback with the creation of new status-based strict liability relationships of NCOs and junior enlisted Soldiers. Fostering esprit de corps among Soldiers of different ranks is as perilous as ever, and commanders are required to enforce a policy that creates victimless crimes and could erode the vibrant mentorship that exists—or at least should exist—among caring NCO leaders and their mentee subordinates in junior enlisted ranks.
o   Army policymakers must consider alternate policy options and should adopt a policy that decriminalizes purely status-based offenses.
·         MAJ J. H. Wheeler III, When the Plain Language is Plainly Wrong: Codified Exceptions to Article 31(b), UCMJ. ARMY LAWYER 3/2020. [https://tjaglcspublic.army.mil/when-the-plain-language-is-plainly-wrong?inheritRedirect=true]
 
o   Article 31 provides protections that are understandable when considering the original concerns it addressed—the “subtle pressures which [exist] in military society.”82 However, the broad language used in drafting these protections almost immediately led to unintended consequences that unreasonably hampered the military criminal justice system. Slowly, the courts have carved away at the unnecessarily broad scope Congress created; however, the patchwork nature of these interpretations has led to misunderstandings and inconsistencies.
 
o        Congress should pass an amendment to Article 31 that would more specifically lay out the protections it wishes service members to enjoy and that will be clear in both scope and purpose. The Duga test, as amended by United States v. Jones, is an understandable and clear test that could be applied by law enforcement and commands. However, well-meaning service members who want to follow the rule and open up an MCM will not find this test; rather, they will find an article of the UCMJ—the plain reading of which has not been the law for over fifty years. Making the recommended statutory amendments to Article 31 will lead to both more predictability for counsel and more consistency from the bench. More importantly, it will provide a clear framework for investigators and law enforcement personnel who are less likely to turn to caselaw for guidance on proper procedures during their investigations. In doing so, such an amendment will provide clearer rights for those accused or suspected of an offense and will necessarily provide greater efficiency to a military justice system that has become much less efficient over time.
 
Research & Writing.
 
All brought to you as a product of the MilitaryLawNewSpeakBureau.

Phil Cave

MJ Editor