Week in Review

Court of Appeals for the Armed Forces

United States v. Bench. The court has granted an issue.

​Whether Lying To A Witness About Appellant's Presence In The Courtroom To Secure Testimony Materially Prejudices Appellant's Sixth Amendment Right To Confrontation.

A panel convicted Appellant of 2x sex abuse of a child and 1x indecent conduct. They sentenced him to 12 years, TF, RiR2E4, DD. 

​Before AFCCA, and 

​On appeal, Appellant raises five assignments of error: (1) whether the military judge erred when he admitted statements of a minor child to a therapist; (2) whether Specification 3 of Charge I (alleging sexual abuse of BC) is factually and legally sufficient; (3) whether the record sufficiently demonstrates compliance with Mil. R. Evid. 603 for one child witness, EC; (4) whether the Specification of Charge II (alleging indecent conduct) is factually and legally sufficient; and (5) whether the sentence is unduly severe. As we rely on the same law and standard for issues (2) and (4), we combine the issues into one analysis. We also consider facially unreasonable appellate delay as this opinion was released more than 18 months after docketing.

I don't see anything in the AFCCA opinion related to the granted issue.

Air Force Court of Criminal Appeals

United States v. Parra.

• MJA NG plea.
  
• Found G of desertion.
  
• 90 days, RiR, BCD.

Issues. (1) Factual sufficiency for desertion; (2) TC misconduct during sentencing argument on two grounds: arguing facts not in evidence and arguing mendacity despite lacking a factual predicate; (3) sentence severity; and (4) legal sufficiency.

Findings and sentence affirmed.

United States v. Thompson.

• MJA. Found guilty of divers sexual assaults-12-16yo, producing CP, 107.
• 12 months, RIR, DD.

Issues: factual sufficiency on producing CP, inappropriate sentence, SOR is cruel / unusual punishment. Court dismissed the producing CP specification w/prejudice.
Otherwise findings and sentence approved.

United States v. Pullings.

• GP MJA w/PTA.
• 2x sex assault of child and 3x sex abuse of child.
• Eight years, RiR, DD.

Issues. :

• CA error for failing to provide his reasons for denying Appellant’s requested deferment of reduction in grade?
  • Error forfeited, so plain error review. "Because the Defense did not move for correction of the Decision on Action memorandum in which the convening authority denied the request for deferral of reduction without explanation, we consider the issue forfeited. See United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009)." And no prejudice.
• Sentence relief for the conditions of post-trial confinement at the Lowndes County Jail in Georgia? The issue relates to medical care and medications. See Geoff Ziezulevicz, Family of sailor who died by suicide in brig appeals Navy's denial of medical negligence claims. Navy Times, Nov. 30, 2021.
• Sentence relief for the conditions of posttrial confinement at the Navy Consolidated Brig in Miramar, California?
• Two issues not raised by Appellant: The convening authority fully complied with the terms of the PTA? And the convening authority failed to take action as required under the applicable version of Article 60, UCMJ?

Findings and sentence affirmed.

Army Court of Criminal Appeals

United States v. Gonzalez.

• MJA NG case.
  
• G of 2x A&B, 1x agg assault.
  
• Eight months, RiR, BCD.

Issues.
IAC--failed to call multiple witnesses with exculpatory testimony, failed to get expert assistance with false confessions, failed to file abatement motion because a material witness was dead; error in admission of GOMOR in sentencing (error but no prejudice).

No IAC, no prejudice--findings and sentence affirmed.

Navy-Marine Corps Court of Criminal Appeals

United States v. Nelson.

Bit o' History

Christofer Klein, US Whistleblowers First Got Government Protection in 1777. History, Sep. 26, 2019.

The U.S. government has long made protecting whistleblowers a priority. In fact, just seven months after the signing of the Declaration of Independence, the Continental Congress passed what Allison Stanger, author of Whistleblowers: Honesty in America from Washington to Trump, called the “world’s first whistleblower protection law.”
The whistleblowers who sought protection were 10 American sailors and marines who had reported improper behavior by the Continental Navy’s most powerful man.

Worth the Read

Hugh McClean, Discharged and Discarded: The Collateral Consequences of a Less-Than-Honorable Military Discharge. 121 COL. L. REV. 2203 (2021).

This Essay adds to the discourse on military discharges by examining the collateral consequences of discharge characterizations through a criminal law lens. This Essay argues that while discharges are technically administrative actions, they have been doing the work of criminal convictions in the military for some time. Since World War II, the lines between administrative action and criminal punishment have become increasingly blurred. Today, veterans who are disciplined through either process continue to be punished long after service through the collateral consequences of their military service.​

Tokson, Matthew J., The Aftermath of Carpenter: An Empirical Study of Fourth Amendment Law, 2018-2021 (September 28, 2021). Harvard Law Review, Forthcoming, University of Utah College of Law Research Paper No. 470, Available at SSRN: https://ssrn.com/abstract=3932015.

​Fourth Amendment law is in flux. The Supreme Court recently established, in the landmark case Carpenter v. United States, that individuals can retain Fourth Amendment rights in information they disclose to a third party. In the internet era, this ruling has the potential to extend privacy protections to a huge variety of sensitive digital information. But Carpenter is also notoriously vague. Scholars and lower courts have tried to guess at what the law of Fourth Amendment searches will be going forward—and have reached different, contradictory conclusions.

​This Article reports the results of a large-scale empirical study of the impact of a transformative Supreme Court decision in federal and state courts. It analyzes all 857 federal and state judgments applying Carpenter from its publication in June 2018 through March 2021. Relying on this unique, hand-coded database, the Article illuminates both the present and future of Fourth Amendment law.

Cheers, Phil Cave

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