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).
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;
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,
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.
Worth the read
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 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.
Cheers, Phil Cave
-Current Term Opinions
Joint R. App. Pro.
Global MJ Reform
LOC Mil. Law