Week in Review

2d Circuit, U.S. Court of Appeals

Fed. R. Evid. 704(b), like the military rule has restrictions on what an expert can testify to when giving an opinion. Prof. Colin Miller (a favorite of ours) leads with,

So, assume that a defendant with PTSD is charged with various child pornography charges and raises an insanity defense. Would it violate Rule 704(b) if a forensic psychiatrist answered the following question: "And a person suffering from Posttraumatic Stress Disorder, can that, in your opinion to a reasonable degree of psychiatric certainty, can that affect an individual's ability to appreciate that his conduct is wrong?"

In United States v. Jakes-Johnson, 2021 WL 2944574 (2nd Cir. 2021), the trial court said yet, the Rule would be violated and prohibited the question. Not so fast says the Second. They focusing on the actual question asked of the witness--which was could it of done, not did it. That's a different question and importantly for the Second, did not go to an ultimate in issue to be decided by the jury. A pyrrhic victory because the court found the error to be harmless.

Western District of Virginia

United States v. Brown, 2021 U.S. Dist. LEXIS 132060 (W.D. Va. Jul. 15, 2021), is a  Peña-Rodriguez v. Colorado, case. Appellant alleged that a juror exhibited racial animus against him in deliberations because he was of Mexican heritage. The court denied a motion for a new trial because the assertion did not meet the second prong of Pena-Rodriguez test: there was no showing of a causal connection between the alleged animus and the decision to convict. Without both prongs being satisfied Rule 606's prohibition will not be lifted.

Court of Appeals for the Armed Forces

United States v. Harrington. A case of interest because CAAF affirmed the military judge in dismissing a rehearing case under Article 10, UCMJ.

Order Granting Petition for Review: United States v. Edwards (AF).

• WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ALLOWING THE VICTIM TO PRESENT AS AN IMPACT STATEMENT A VIDEO—PRODUCED BY THE TRIAL COUNSEL—THAT INCLUDED PHOTOS AND BACKGROUND MUSIC.

Air Force Court of Criminal Appeals

United States v. Coovert. Appellant was convicted by by an officer panel of sexual assault, for which he was  convicted and for which he was sentenced to two-years and six months, and a DD. The court found no error on four issues in his appeal.

: (1) whether trial defense counsel were ineffective for failing to move to suppress Appellant’s statement to Air Force Office of Special Investigations (AFOSI) agents and for failing to adequately cross-examine the victim;

(2) whether trial counsel committed prosecutorial misconduct by introducing and arguing irrelevant information and improperly appealing to the members’ emotions to convict Appellant]

(3) whether Appellant’s conviction is legally and factually sufficient; and 

(4) whether the military judge abused his discretion by failing to conduct an in camera review on a motion to compel production under Mil. R. Evid. 513.

​Following our initial review of this case we specified a fifth issue for consideration: (5) whether Appellant is entitled to appropriate relief because the convening authority failed to act on Appellant’s request for deferment of his reduction in rank as required by Rule for Courts-Martial (R.C.M.) 1103(d)(2).

Finding no error the court affirmed the findings and sentence.

Army Court of Criminal Appeals

United States v Allen.  An officer panel convicted Appellant of an attempted abusive sexual contact and two abusive sexual contacts. For  which he was sentenced to six-months,  a DD, and RIR. The single issue on appeal, rejected by the court, was the denial of an implied bias challenge against a panel member.

United States v. Laramie. This is an odd one. Appellant was convicted, in absentia, of  raping a child, possession of CP, and production of CP. He was sentenced by the enlisted panel to LWOP and a DD. Prior to trial and going UA the Appellant had signed an MJA request naming a specific judge. 

When trial proceeded in absentia, the defense counsel submitted the Appellant's MJA request. The MJ declined to accept it because he was a different judge to the one named in the written request. Everyone geared up for a panel case. This was the product of the new "default" for members cases effective January 1, 2019.
​

Appellant now argues his defense counsel were deficient for failing to submit to the court the MJAR containing COL DW's name prior to LTC JM being detailed as the military judge. Appellant posits that a timely submission of the MJAR would have notified COL DW that appellant requested a judge-alone trial before COL DW and this would have allegedly precluded detailing L TC JM to the case. We reject appellant's argument.

This case presents an interesting issue about forum selection does it not--something not addressed in the opinion. (Note Judge Fleming writing for the court had been a regional defense counsel and a military judge.)  When we advise a client on going MJA we usually do that having in mind who the judge will be. Usually that is reliable advice because there isn't usually a judge change. But,

 
Notably, Article 16, UCMJ does not mandate that after a military judge accepts an accused's MJAR, that the accused is entitled to that same judge for the balance of his case, thereby precluding the detailing of a subsequent judge. See generally id. Accordingly, while Article 16, UCMJ permits an accused to request a judge-alone trial, nothing about the plain language of the statute suggests that the mere submission of a MJAR-or even a military judge's acceptance of a submitted MJAR-precludes a subsequent substitution of a new military judge before assembly
of the court. 

The court does point out that Appellant did not raise an abuse of discretion by the MJ in failing to accept the MJA request anyway. But nor did the court choose to specify the issue. Now that also would have been a good read.

Navy-Marine Corps Court of Criminal Appeals

United States v. Alkazahg. The court held oral argument yesterday on these issues.

• Does Chevron reliance under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), apply to criminal statutes and—if so—is this Court bound by the Government’s specific disclaimer of reliance on Chevron?
• Is a bump stock a machine gun under 26 U.S.C. § 5845(b)?

Extra credit:

1. Michael Herz, Chevron is Dead; Long Live Chevron. 115 COLUMBIA L. REV. No. 7.
2. Supreme Court Places Another Limitation on Chevron Deference. NAT'L L. REV. July 19, 2021.
3. James Goodwin,  Will Confirming Judge Barrett be the Death of Chevron Deference? The Equation, Union of Concerned Scientists, October 15, 2020.
   
4. United States v. Jeter. On July 28, 2021, the court will hear oral argument on this issue. Whether the holding in Batson v. Kentucky, 476 U.S. 79 (1986), should extend beyond peremptory challenges to a convening authority’s selection of members.

Worth the read

• Advice from a former Justice in Robert S. Peck, Does Oral Advocacy Advice from an Earlier Era Stand Up Today? Appellate Advocacy blog 18 July 2021.
• Slightly off topic, Doolen v. Sec. Army, et. al. The Second Circuit denied a claim about Doolen's separation from the USMA. (Note, the approximate value of his education to be recouped is   $226,662.00.) The court held, 

West Point’s cadet separation procedures satisfy due process and that the intra military immunity doctrine, which bars judicial interference in discretionary military personnel decisions, renders Doolen’s regulatory claims nonjusticiable.  

• The Commandant of the Army War College is to be reinstated after an investigation and review of sexual abuse allegations.

"The decision regarding probable cause was completely independent of any command influence and was not presented to any commander for a disposition decision," the Army said.
. . .
​CID referred the case to an independent special victim prosecutor and a former civilian prosecutor who now works as an expert for the Army. Both officials decided there was not enough evidence to find the alleged offense had probably occurred, the service said. Before charges can be filed, prosecutors are required to determine whether the existing evidence clears a legal hurdle, known as probable cause, meaning that the evidence indicates the crime likely happened.

Cheers, Phil Cave