Week in Review -- 19 March 2021

CAAF

New grants

United States v. Moratalla—WHETHER THE APPELLANT'S GUILTY PLEA TO BANK FRAUD UNDER 18 U.S.C. §1344 WAS IMPROVIDENT.

United States v. Turner--WHETHER THE LOWER COURT ERRED WHEN IT RULED THAT IT COULD NOT CONSIDER EVIDENCE OUTSIDE THE RECORD TO DETERMINE SENTENCE APPROPRIATENESS UNDER ARTICLE 66(c), UCMJ.

United States v. Davenport—WHETHER THE CONVENING AUTHORITY'S FAILURE TO TAKE ACTION ON THE SENTENCE DEPRIVED THE ARMY COURT OF JURISDICTION UNDER ARTICLE 66, UCMJ.

United States v. Brubaker-Escobar--WHETHER SECTION 6(b) OF EXECUTIVE ORDER 13,825 OF MARCH 1, 2018 WAS A LAWFUL EXERCISE OF THE AUTHORITY DELEGATED TO THE PRESIDENT BY SECTION 5542(c)(1) OF THE NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2017 OR BY ANY OTHER LAW. (This is an unusual event for CAAF to specify new issues post oral argument.)

ACCA

 
United States v. Brown., 80 M.J. ___ (A. Ct. Crim. App. 2021).

It is axiomatic that once the post-trial processing of a court-martial is complete, it should not take the government over 200 days to accomplish the simple, ministerial task of mailing a record of trial to this court. Yet that is precisely what occurred in appellant's case. Twisting the knife on itself, the government provides no explanation whatsoever for the delay. In this opinion, we not only award appellant appropriate relief for the unreasonable and unexplained delay in the post­
trial processing of his court-martial, we also settle on a framework for analyzing claims of dilatory post-trial processing under the new procedures enacted in the Military Justice Act of 2016, Pub. L. No. 114-328, $$ 5001--5542 (23 Dec. 2016) and implemented in the 2019 Rules for Courts-Martial [R.C.M.] by Executive Order 13,825, 83 Fed. Reg. 9889 (8 Mar. 2018).

The court applies the “familiar Moreno due process analysis” And ,

We recognize this opinion deviates from the plain language of Moreno. However, we cleave as closely as possible to the language of that opinion, applying the timelines of Moreno to the remaining post-trial processing guideposts in the new legal landscape, and maintaining the fundamental precept that "convicted servicemembers have a due process right to timely review and appeal of court­ martial convictions." Moreno, 63 M.J. at 129 (citing Toohey, 60 M.J. at 101).

United States v. Hertel. A post-trial error case. This case demonstrates some of the issues that can arise when the convening authority is acting on requests to waive and defer forfeitures.

AFCCA

United States v. Williams. Enlisted members convicted Appellant of one sexual assault for which he was sent to the Brig for three months and given a duck dinner. There are four AOEs and two Grosty’s. Issues 2 and 4 are the most interesting: admission of evidence from his prior court-martial acquittal (not that rare an issue) and a denial of due process when the prosecution changed its theory of guilt mid-trial (not that rare of an issue.

“The military judge’s ruling in this instance does give us pause, as it provides little indication of the careful and thorough Mil. R. Evid. 403 analysis required in analyzing evidence proffered for admission under Mil. R. Evid. 413, an analysis of a constitutional dimension. See James, 63 M.J. at 222; Wright, 53 M.J. at 483. Because the evidence the Government sought to admit resulted in acquittal, that fact required “great sensitivity” in determining whether the evidence should be allowed. See Griggs, 51 M.J. at 420. If the military judge did give this issue the required degree of consideration, such is not evident from his ruling, as the military judge provided only broad and conclusory statements, stating, for example, he was “satisfied that the strength of proof is sufficient on this evidence” without any further explanation. At least one of the military judge’s findings of fact—that AW was “extremely intoxicated”—was not just unsupported by the record, but at odds with the evidence presented, thereby amounting to clear error. We are also unclear how the military judge concluded a closet without a door in an on-base club where a party was underway amounted to “a private location.” As a result, we give the military judge’s conclusions of law minimal deference. See Berry, 61 M.J. at 96.

But the court found no judicial error in admitting the evidence.

2. Prior to trial, the Defense submitted a motion in limine asking the military judge to bar trial counsel from advancing any argument or theory that AM could not consent based upon either her being incapacitated due to her alcohol consumption or that she was asleep, unconscious, or otherwise unaware that she was participating in sexual conduct with Appellant. The military judge denied the motion, explaining the Government had to prove AM did not consent, and this would require “examination and consideration of all the facts and circumstances,” including AM’s level of intoxication, which the military judge concluded amounted to evidence of whether or not AM “effectively consented.”

For me, this case shows why Congress created more confusion by adopting four theories of criminality under Article 120; a situation needing only two—one of general application and one more specific to medical and mental health providers.

PENDING APPELLATE CASES

United States v. Injerd. The appellant was “convicted of desertion, resisting apprehension, assault of a superior noncommissioned officer, failure to obey an order or regulation, carrying a concealed weapon, assault upon law enforcement and two counts of disorderly conduct.” And he has been sentenced to 30 months confinement; and a duck dinner?

United States v. Juda. The appellant has plead guilty to use and distribution of LSD and his sentence included a Big Chicken Dinner.

WORTH THE READ

VanLandingham & Corn,What Happens when Service-Members, Past or Present, Breach their Sacred Oath? 18 March 2021, American Const. Society. Discusses Larabee and Begani.
 
LTC Daniel D. Maurer, Is Demilitarizing Military Justice an Ethical Imperative for Congress, the Courts, and the Commander-in-Chief? 49 HOFSTRA L. REV. x (2021).

​This symposium introduction to ethics in military justice highlights that professional responsibility norms, expectations, and problems impact and imperial this discipline just as they do in any other criminal justice system. But in such a dizzyingly specialized criminal justice schema, the problems and perils of legal ethics and professional responsibility are both heightened and clouded by their seemingly difficult remoteness. Because the context of military justice implicates—to various degrees—national security, and not just individual cases and individual parties, special attention is owed in several critical areas. Political interference in military prosecutions has a long history, and it inevitably corrupts and taints individual cases, impairing public confidence in the judicial integrity of the court-martial. Moreover, this is a justice system that self-consciously celebrates the influential and central role of the commanding officer, creating an “operating environment [which] remains an orders-driven, hierarchical, and profoundly coercive special society.” It must, therefore, still contend with and actively combat the ever-present risk of “unlawful command influence” no matter how many other civilianizing characteristics military justice now enjoys, and regardless of whether that influence was direct or merely indirect, actual or only apparent, intentional or just inadvertent. Moreover, in a field as obscure as military law, public transparency of judicial and prosecutorial decision-making—especially in terms of sentencing—may outweigh the countervailing goal of shielding the “deliberative process” when both statutes and case law either already require it in civilian practice or encourage it. Some national security professionals, military justice practitioners among them, are “under pressure” to depart from professional norms and their professional obligations, and to dilute or change their advice to their (political) principals, or to advocate on the principal’s behalf thereby losing their highly valuable professional independence—they are “wedged between their principles and principals.”

APPELLATE ADVOCACY

The ABA has a note about the Bluebook.

U.S. Supreme Court Justice Clarence Thomas went rogue on the Bluebook when he embraced an appellate lawyer’s suggestion for dealing with “citation baggage” that comes with some quoted material.

Jack Metzler, an appellate lawyer with the Federal Trade Commission, outlined the problem in an article at SSRN in March 2017. 
 
Metzler explained in an email to the ABA Journal. “I proposed that writers could use a single parenthetical—(cleaned up)—to signal that extraneous material was removed from the quotation without changing any of the underlying text.”
So here is what Justice Thomas did in Brownback, et. al. v. King.
 
Under that doctrine as it existed in 1946, a judgment is “on the merits” if the underlying decision “actually passes directly on the substance of a particular claim before the court.” Id., at 501–502 (cleaned up). Slip op. at 6.