Week in Review

United States Supreme Court

Hemphill v. New York, ___ U.S. ___ (Jan. 20, 2022). This 8-1 opinion written by Justice Sotomayor addresses,

A litigant’s argumentation or introduction of evidence at trial is often deemed to “open the door” to the admission of responsive evidence that would otherwise be barred by the rules of evidence.

The question presented is: Whether, or under what circumstances, a criminal defendant who opens the door to responsive evidence also forfeits his right to exclude evidence otherwise barred by the Confrontation Clause.

After the 2006 shooting death of David Pacheco Jr., New York tried Nicholas Morris for the murder and for possession of the suspected murder weapon, a firearm. But that trial ended in a mistrial, and the state ultimately re-charged Morris for possession of a different firearm. Morris pleaded guilty to that charge.
The state then tried Darrell Hemphill for the murder. At Hemphill’s trial, prosecutors repeatedly sought to admit into evidence statements from Morris’ plea allocution in which Morris denied possession of the suspected murder weapon – statements that were never subject to cross-examination. The trial court first denied admission, citing the confrontation clause, but eventually found that the statements were admissible because the arguments put forward by Hemphill’s counsel had “opened the door” to the evidence.
The Supreme Court rejected that theory. “The Confrontation Clause requires that the reliability and veracity of the evidence against a criminal defendant be tested by cross-examination, not determined by a trial court,” Sotomayor wrote. “The trial court’s admission of unconfronted testimonial hearsay over Hemphill’s objection, on the view that it was reasonably necessary to correct Hemphill’s misleading argument, violated that fundamental guarantee.”

SCOTUSBlog.

Court of Appeals for the Armed Forces

It looks like CAAF is ready to speak on a number of issues about access a complaining witness's medical and mental health records.

​No. 22-0023/AR. U.S. v. Michael L. McClure. CCA 20190623. 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 issue:
 
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE DENIED DEFENSE'S MOTION FOR ACCESS TO JS'S MENTAL HEALTH RECORDS UNDER M.R.E. 510 AND 513 AND REFUSED TO REVIEW THE MENTAL HEALTH RECORDS IN CAMERA TO ASSESS WHETHER A CONSTITUTIONAL BASIS JUSTIFIED THE RELEASE OF THE RECORDS TO THE DEFENSE.

No. 21-0312/NA. U.S. v. Wendell E. Mellette, Jr. CCA 201900305. On consideration of the petition for grant of review and the pleadings, it is ordered that said petition is granted on the following additional issue:
 
WHETHER THE COURT OF CRIMINAL APPEALS ERRED BY HOLDING THAT THE VICTIM WAIVED THE PSYCHOTHERAPIST- PATIENT PRIVILEGE.
 
Briefs on this additional issue will be filed by Appellee, Appellant, and Amici Curiae on or before January 26, 2022. The previous grant:

No. 21-0312/NA. U.S. v. Wendell E. Mellette, Jr. CCA 201900305. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:
 
I.  M.R.E. 513 EXTENDS THE PYSCHOTHERAPIST-PATIENT PRIVILEGE TO A "CONFIDENTIAL COMMUNICATION" BETWEEN PATIENT AND PSYCHOTHERAPIST OR ASSISTANT. DID THE LOWER COURT ERR BY CONCLUDING DIAGNOSES AND TREATMENT ARE ALSO SUBJECT TO THE PRIVILEGE, INVOKING THE ABSURDITY DOCTRINE?
 
II. DID THE NMCCA DEPART FROM SUPREME COURT AND CAAF PRECEDENT BY NOT REVIEWING THE EVIDENCE AT ISSUE—DIAGNOSES AND TREATMENT, INCLUDING PRESCRIPTIONS—IN CONCLUDING: (1) THE MENTAL HEALTH EVIDENCE WAS BOTH PREJUDICIAL AND NON-PREJUDICIAL; AND (2) FAILURE TO PRODUCE IT WAS HARMLESS BEYOND A REASONABLE DOUBT WHERE THE UNKNOWN EVIDENCE COULD HAVE NEGATED THE EVIDENCE THE NMCCA CLAIMED TO BE "OVERWHELMING" EVIDENCE?

NMCCA's published opinion.

Air Force Court of Criminal Appeals

United States v. Vargas. Appellant is revisiting the court. He had been convicted by enlisted members of two attempted abusive sexual contacts, three sexual assaults, and two assaults and battery. He was sentenced to 13 years, TF, RiR, and a DD. This is a long running case about an MJs removal (temporarily) from cases. One of the effects of the initial set-aside was appointment of an Army MJ for the rehearing.

There was a lot of talk in the defense counsel community, and concern, as the events detailed in this case were ongoing--could our clients get a fair trial? What was particularly alarming to the public was the alleged and talked about efforts of prosecutors to get a judge off the bench whose decisions they didn't like--this is not a new problem or new perception of a problem perhaps in a manner more unfortunate than, for example,  Salyer.

The mere appearance of unlawful command influence may be "as devastating to the military justice system as the actual manipulation of any given trial." United States v. Ayers, 54 M.J. 85, 94-95 (C.A.A.F. 2000) (quoting United States v. Allen, 33 M.J. 209, 212 (C.M.A. 1991). "Even if there was no actual unlawful command influence, there may be a question whether the influence of command placed an 'intolerable strain on public perception of the military justice system.'" United States v. Lewis, 63 M.J. 405, 415 (C.A.A.F. 2006) (quoting United States v. Stoneman, 57 M.J. 35, 42-43 (C.A.A.F. 2002)). "Whether the conduct of the [senior leaders] in this case created an appearance of unlawful command influence is determined objectively." Id. Because the focus is on the perception of fairness as viewed through the eyes of a reasonable member of the public, "[T]he appearance of unlawful command influence will exist where an objective, disinterested observer, fully informed of all the facts and circumstances, would harbor a significant doubt about the fairness of the proceeding." Id.

United States v. Rodriguez, No. ACM 38519 (f rev), 2016 CCA LEXIS 416, at *6 (A.F. Ct. Crim. App. July 13, 2016) (memorandum op.).

Vargas and the other examples present difficult situations. We shouldn't have a problem requiring judges to be civil and professional. We've all seen or read of judges who dump on trial counsel or who dump on defense counsel, they have that reputation.

In Vargas, I'm not sure the court pays sufficient attention to the impact on the defense counsel community, clients, and the public at the time. Is what was happening, or appeared to be happening, in Europe going on elsewhere--prosecutors trying to get rid of judges they don't like?

By "the public" we mean not only the civilian population, but also the rank and file of the services. Since the vast majority of servicemembers have no direct contact with the military justice system, their perspective is very similar to that of the civilian public and for purposes of this analysis may be regarded as essentially the same.
​
We do not understand the appearance doctrine to be limited in its application to situations which have already been publicized. We believe that the appearance doctrine was devised to insure that public confidence in the military justice system would not be undermined by the appearance that the accused was prejudiced by unlawful command influence in a given case if that case were subjected to public attention. Cf. United States v. Berry, 6 U.S.C.M.A. 609, 20 C.M.R. 325, 330 (ABR 1956); United States v. Thompson, 3 U.S.C.M.A. 620, 14 C.M.R. 38, 41 (ABR 1954).

United States v. Cruz, 20 M.J. 873, 882 (A.C.M.R. 1985).

The problem is not new and there are a number of cases of interest: United States v. Lewis, 63 M.J. 405 (C.A.A.F. 2006); United States v. Mabe, 33 M.J. 200 (C.M.A. 1991) (famous for the "Mabe Letter"); United States v. Allen, 33 M.J. 209 (C.M.A. 1991), Allen v. United States, 46 Fed. Cl. 677 (2000). So, perception wise, there is a history of prosecutors and SJAs trying to get a judge of the bench because they don't like that judge's decisions. And, this perception is based on publicly available reports yet there could be other instances that have not been made public.

In fairness I should note that just after CL's return to trying sexual assault cases I took, with trepidation, an officer sexual assault case MJA with him. (There is a three-beer explanation of the thinking--and the Ginn letter would have been very lengthy.) The acquittal relieved the tension in the tummy. The judge was civil and professional throughout.

United States v. Huff. The Appellant pled guilty to twice possessing and twice viewing CP. He was sentenced to 24 months, TF, RiR, a BCD, and a reprimand. Huff returns to AFCCA after having his case returned to correct post-trial errors.

[W]e now turn to Appellant’s remaining two issues: (1) whether certain language should be excepted from two specifications; and (2) whether the military judge erred by admitting a certain exhibit over defense objection. We agree, in part, with Appellant regarding the first of these issues, and we take corrective action in our decretal paragraph. Finding no further error materially prejudicial to Appellant’s substantial rights, we affirm the findings, as modified, and sentence as reassessed.
, , , 
 Over a period of about two years, Appellant and his wife, downloaded and viewed child pornography together while Appellant was stationed at Royal Air Force Mildenhall, United Kingdom. . . Appellant and [and] fantasize[d] about sexually assaulting children they might one day have and discuss their efforts at finding child pornography on the Internet. .

The alleged improper evidence in sentencing were texts between Appellant and his spouse discussing the CP and their fantasies about child sexual abuse. The defense had trial had objected on relevance and Mil. R. Evid. 403 grounds as "neither resulted from nor directly related to the conduct of which convicted. 

At first blush, the military judge’s decision to admit Prosecution Exhibit 3 in its entirety seems highly questionable. Three-quarters of the document revolved around Appellant’s and Ms. AH’s odious fantasies about not only sexually abusing children, but raising them in a household where such abuse is normalized and welcomed. The remainder of the document contained comparatively tepid discussions about whether to look for child pornography online and which websites were more or less likely to have the material they were looking for. 

An accused’s attitude toward his or her offenses is a relevant matter in sentencing. Appellant, however, was not charged with sexually assaulting any children or attempting to do so. Thus, the connection between the messages fantasizing about assaulting children and proper sentencing considerations in Appellant’s case is tenuous, at best.

The court finds no prejudicial error.

• It's an MJA case.
  
• It's a GP case.
  
• The MJ "limit[ed] his consideration of the exhibit to Appellant's "state of mind concerning his intent to obtain pictures and videos of underage girls[.]"

Different result in a members case?

United States v. Caffrey. Appellant pled guilty to twice sexually abusing a child. Sentenced to 2 years, RiR, and a DD. The case is back after remand for correction of post-trial errors. The sole issue is sentence appropriateness. Affirmed.

United States v. Robinson. Sentenced to five months, five months forfeitures, RiR, and a BCD. The case is back after "having been twice previously returned" to correct post-trial errors. Initially the court found the case correct in law and fact, except for the post-trial errors. It appears there still were errors, but this time the court declined to give any relief.

Army Court of Criminal Appeals

United States v. Gillis. Appellant has his fifteen year confinement reduced by 30 days for dilatory post-trial processing.

[GP to] willfully causing to be communicated, delivered, or transmitted national defense information to which he had lawful access that he had reason to believe could be  used to injure the United States or to the advantage of a foreign nation, to persons not entitled to receive such information, and four specifications of violating  by willfully communicating and making available to unauthorized persons classified information obtained by the processes of communication  intelligence from communications of a foreign government[.] The MJ sentenced appellant to a dishonorable discharge, confinement for fifteen years, and reduction to E-1.

United States v. Lopez.

An enlisted panel convicted appellant,  of one specification of sexual assault and one specification of  forcible sodomy. The military judge conditionally dismissed  the Article 120, UCMJ, specification since the government charged the two offenses in the alternative. The panel sentenced the appellant to a dishonorable discharge, confinement for one year, forfeiture of all pay and allowances, and reduction to the grade of E-1. 

Appellant raised seven issues, none received relief although one merited discussion. The MJ erred by admitting a text message as an exited utterance and prior consistent statement (but not prejudicial).

• Text sent "after the victim had sufficient time to reflect on the events from the prior night."
• "Victim was no longer under the stress of excitement from the sexual assault which occurred the night before when she texted her sister on the following morning.
• Texting sister "eight to ten hours after the sexual assault was [not] "immediately

following the incident.""

• Sufficient time for reflection and allowed deliberation.

We find the military judge mishandled the prior consistent statement issue because he failed to provide specific findings of fact or particularized conclusions of law on the record as to what "other grounds" he was admitting the text message to rehabilitate[on. 

[W]e are left to speculate on the relevancy link. Instead, the text message appears to be a means to improperly bolster the victim's testimony of the sexual assault by showing she reported the forcible sodomy incident to her sister on the following morning.  The military judge also failed to conduct any Mil. R. Evid. 403 analysis with respect to admission of the victim's text message. 

United States v. St. Jean. An enlisted panel convicted appellant of one false official statement and one sexual assault. He was sentenced to five years, TF, RiR, and a DD.

The court finds the FOS insufficient but does not find error in the argued admission of HLD or improper TC argument. Something to keep in mind,

In United States v. Eggen, appellant asserted testimony regarding "whether [the victim] was 'faking' his emotions and whether he was being truthful with  [another witness] amounted to an impermissible expert opinion on credibility." M.J. at 161. The government highlighted the testimony was not raised on direct
examination, but "was pursued on cross-examination." Id. The Court of Appeals for the Armed Forces {CAAF) held, "[i]n effect, the actions by the defense counsel opened the door for this examination by the prosecutor. Any error was induced or 'invited' by the defense." Id. (citations omitted), The court concluded, "[a]ppellant cannot create error and then take advantage of a situation of his own making. Invited error docs not provide a basis for relief." Id. 

Likewise, defense counsel first raised the issue of( MEB, her disability rating, and the factual connection between her medical discharge and the ultimate issue, whether appellant raped her, before government counsel even broached the topic. As the issue complained of on appeal was repeatedly initially raised by
defense counsel, it appears defense opened the door to redirect testimony. 

The court found that trial counsel "created a condition, suffered by some litigators, most commonly referred to a reciting "facts not in evidence" and it was improper on those grounds." Again, "Although the trial counsel's two sentence rebuttal argument might have
crossed the line, as noted earlier, the argument was in response to topics first raised
by defense counsel[.]"

The insufficiency problem arose because the charged lie was that appellant told CID "that he had not 'spent time with' the CW." But the government failed to produce any evidence the appellant actually said that. Rather, the government argues that when appellant said "that he had not 'seen' her" he was lying and that lie was encompassed in the charged phrase. I have no idea if this should be a case of splitting hairs or a failure to read the evidence when preferring charges, while before a PHO, or prior to meeting the CA. In this case that doesn't matter because the court found "no rational trier of fact could have found all essential elements of the crime."

The court knocked two months off the sentence. He may actually get the benefit of that sentence reduction.

Worth the Read

Brandon J. Murrill, CONG. RSCH. SERV., RS45129, Modes of Constitutional Interpretation (2018).

Cheers, Phil Cave