U. S. Supreme Court
Here is a link to a SCOTUSBlog review of Hemphill.
I was particularly interested in the last paragraph about confrontation at suppression hearings and during sentencing.
The 8th has addressed confrontation during a suppression hearing. United States v. Thompson, 2008 U.S. App. LEXIS 15389 (8th Cir. Jul. 21, 2008). See also United States v. Boyce, 797 F.2d 691, 693 (8th Cir. 1986) (quoting United States v. Raddatz, 447 U.S. 667, 679 (1980)).
In United States v. McDonald, 55 M.J. 173 (C.A.A.F. 2001), the court ruled that there is no right of Sixth Amendment confrontation during a non-capital case sentencing hearing. C.A.A.F. cites a number of federal circuit cases including United States v. Wise, 976 F.2d 393, 401 and n.3 (8th Cir. 1992) (en banc), cert. denied, 507 U.S. 989 (1993). The granted issue in McDonald was
WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE SIXTH AMENDMENT'S CONFRONTATION CLAUSE DOES NOT APPLY TO THE PRESENTENCING PORTION OF A COURT-MARTIAL, CONTRARY TO THIS COURT'S DECISION IN UNITED STATES V. GEORGE, 52 M.J. 259 (2000).
55 M.J. at 174.
However, under Williams, the Due Process Clause requires that the evidence introduced in sentencing meet minimum standards of reliability. Those requirements were met here. There is no evidence to suggest that the victim's father's testimony was unreliable or his identity questioned. Additionally, there was notice to the defense, right to counsel, right of cross-examination, and a presentation of the evidence by telephone to the judge as the sentencing authority. The record establishes that the "practical difficulties of producing a witness," including the cost and timing, were such that the judge did not abuse his discretion in allowing the victim's father's testimony to be taken by telephone. Cf. United States v. Hill, 4 M.J. 33, 37 n.18 (CMA 1977). See also United States v. Rich, 12 M.J. 661, 663 n.3 (ACMR 1981). In any event, any error in this case was harmless. We do not suggest that telephone testimony is appropriate in all cases. Manual guidance to the military judge during sentencing is sufficient to ensure the proper balance between obtaining needed testimony and safeguarding rights of the accused.
55 M.J. at 177-78. The question then becomes finding the left and right limits of "confrontation" at sentencing as a due process concern.
McDonald rests on several points of military practice which includes notice of sentencing evidence and the opportunity to present evidence. But, the military is different than civilian jurisdictions. Sentencing comes immediately after the findings of guilty. There is no delay of weeks or months between the two events which means there is often little time to properly investigate and prepare rebuttal to prosecution evidence. While R.C.M. 701(a)(5) requires government disclosure of sentencing evidence upon request, how common or uncommon is it for the prosecution to provide timely notice so the defense has the opportunity to investigate and perhaps find rebuttal evidence?
Air Force Court of Criminal Appeals
United States v. Smith. Appellant pled guilty to multiple specifications of drug use and he was sentenced to 2 months, RiR, a BCD, and a reprimand. Relief denied on a Grosty sentence appropriateness claim.
United States v. Goldman. Appellant pled guilty to willfully disobeying a superior commissioned officer, failure to obey a lawful general regulation, wrongful use of marijuana, three specifications of assault consummated by a battery, two specifications of assault consummated by a battery of a child, one specification of obstruction of justice, one specification of wrongful extramarital sexual conduct, one specification of child endangerment, and one specification of drunk and disorderly conduct. Sentenced to 10 months, RiR, a BCD, and a reprimand. Remanded for correction of post-trial issues.
United States v. Caffrey. Appellant pled guilty to twice sexually abusing a child and was sentenced to two years, RiR, and a DD. Caffrey was revisiting AFCCA after correction of post-trial errors. His allegation that the sentence was inappropriately severe was rejected.
Army Court of Criminal Appeals
United States v. Hatfield. An enlisted panel convicted him of three specs. of child sexual abuse and he was sentenced by them to 18 months, TF, RiR, and a DD. He raised three issues of which the court addresses one--but ultimately affirms the findings and the sentence.
He alleged a jurisdictional defect because the MJ improperly advised him of his forum rights. The MJ did not tell him that he had an option on sentencing to choose MJ sentencing. At trial the defense counsel agreed that all of the offenses occurred before January 1, 2019, so the MJ advised him of the old sentencing rules. The court delved into the interplay between EO 13,825, with UCMJ art. 25(d)(2) and UCMJ art. 53.
Reading the plain language of Articles 25(d)(I) and 53(b)(1) leads to the same unambiguous result. Simply put, there is nothing in Article 25(d)(1) that actually authorizes the members to sentence appellant, so even if that provision is in effect to the offenses in question in this case, the most it can do is allow for appellant to make a request. The EO is clear, however, that Article 53(b)(1), which would allow the military judge to actually sentence the accused based on his Article 25(d)(l) request, does not apply to offenses committed before 1 January 2019.
And the issue was waived because not raised at trial.
United States v. Portner. Appellant pled guilty to twice attempting fraudulent use of an access device and a false official statement. The MJ sentenced Appellant to 170 days, TF, and a BCD. Appellant raised no issues but the court specified two.
The perceived problems.
Trial defense attorneys are required to "safeguard the confidentiality of their clients' privileged communications unless disclosure is authorized, e.g., the client specifically authorizes disclosure, or a client attacks the effectiveness of his or her attorney, thus waiving the privilege." United States v. Danley, 70 M.J. 556, 558 (N-M. Ct. Crim. App. 2011) (citing United States v. Williams, 57 M.J. 581, 583 (N-M. Ct. Crim. App. 2002); see also Blunk, 37 C.M.R. at 425. This safeguarding includes preventing unauthorized disclosure of certain client letters, often referred to in the sea services as "Blunk" letters, which explain that the attorney advised against pursuing a punitive discharge or electing not to submit matters in clemency. Danley, 70 M.J. at 558.
United States v. Qualls, No. 201600149, 2016 CCA LEXIS 727, at *4-5 (N-M Ct. Crim. App. Dec. 20, 2016).
Navy-Marine Corps Court of Criminal Appeals
United States v. Haller. Appellant pled guilty to dereliction of duty as a medical officer by giving prescription meds to his wife and daughter's boyfriend, wrongful possession of controlled substances, and wrongful possession in his home of non-controlled, but prescription meds without a valid and current prescription. His dismissal was accompanied by a reprimand.
Based on our independent review of the record of trial under Article 66, UCMJ, we question his conviction under Article 133, UCMJ. The issue is whether simple possession, without more, of two prescription non-controlled substances in a private, off-base residence constitutes conduct unbecoming an officer. Both substances were prescribed for anxiety and sleep issues and obtained in approximately 2014; one was obtained by Appellant with a legitimate prescription but was retained after it expired, and the other was obtained from a family member while Appellant was on leave. We find insufficient factual and legal bases to support Appellant’s guilty plea to this offense and take action in our decretal paragraph.
A more Careful inquiry was required here. Upon reassessment the remaining findings and the sentence were affirmed.
United States v. Buttigieg. Appellant pled guilty to attempted indecent recording of a child, distributing CP, and possession CP. Sentenced to 68 months, RiR, and a BCD. Appellant raised the issue of a confinement policy prohibiting an offender convicted of a sex offense from having contact with their non-victim, non-witness children. There is nothing sufficiently factual in the record upon with the court can review for sentence appropriateness and appellant was prohibited from submitting it post-trial because of Jessie and Willman.
It seems to me that defense counsel need to make the visitation and contact policy a part of the sentencing case with as much detail as possible--and argue it on sentencing.
Michelle M. Bufano, Expert Witness Testimony Rule Changes Would Service Justice. Bloomberg Law, Jan. 5, 2022.
Worth the Read
Chiara Fontinato, Peter Gill, and Ane Elida Fonnelop, Non-self DNA on the neck: a 24 hours time-course study. 57 FSI GENETICS, FORENSIC SCI. INT'L, Jan. 13, 2022.
Cheers, Phil Cave
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