Court of Appeals for the Armed Forces
No. 21-0318/AR. U.S. v. Sven M. Council. CCA 20190321. On consideration of Appellant's motion to exceed page limits and the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said motion is granted, and that said petition is granted on the following issue:
DID THE ARMY COURT OF CRIMINAL APPEALS ABUSE ITS DISCRETION WHEN IT DENIED APPELLANT'S MOTION FOR A STAY AND TO ORDER A SANITY BOARD PURSUANT TO R.C.M. 1203 AND 706?
The decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to The Judge Advocate General of the Army for remand to that court for proceedings in accordance with Rule for Courts-Martial (R.C.M.) 1203(e)(5). That court may first order affidavits from all appellate defense counsel concerning Appellant's mental capacity to cooperate with counsel in appellate proceedings, but in any event shall order an R.C.M. 706 inquiry into Appellant's mental capacity at trial and on appeal and his mental responsibility for his offenses. If there are further proceedings, Articles 66 and 67, Uniform Code of Military Justice, 10 U.S.C. §§ 866, 867 (2018), respectively, shall apply.
[January 15, 2021] United States v. Beauge. Appellant alleged the MJ erred in denying discovery of the victim’s mental health records and IAC for failing to argue alternate theories for disclosure under either Mil. R. Evid. 513(d)(2) and/or because constitutionally required. A good discussion of how piercing the MRE 513 privilege might be appropriate as constitutionally required.
[October 27, 2021] No. 21-0183/NA. U.S. v. Frantz Beauge. CCA 201900197. On consideration of the motions filed by Patient/Victim C.G. to file an amicus curiae brief, to intervene, and to present oral argument as amicus curiae, it is ordered that the motion to file an amicus curiae brief is granted, and the motions to intervene and to present oral argument as amicus curiae are denied..
Air Force Court of Criminal Appeals
United States v. Howell. Appellant was sentenced to 30 days, a Dismissal, and TF. He had pled guilty to diverse distributions and uses of cocaine and fraternization. He raised two issues regarding post-trial processing, one of which resulted in remand of the case to the convening authority.
United States v. Shelton. Appellant was sentenced to 45 days, a BCD, RIR, and a reprimand. He pled guilty to two A&Bs. His two issues were TC inappropriate sentencing argument and double punishment for the same offense. The court affirmed the findings and sentence.
"“[E]ither party [in a court-martial] may comment on properly admitted unsworn victim statements.” United States v. Tyler, 81 M.J. 108, 113 (C.A.A.F. 2021)."
It would be easy to simply find no prejudicial error as this was a judge alone sentencing hearing where we presume the military judge to know the law and apply it correctly. We do not presume clairvoyance on the part of military judges, and the CAAF’s Tyler opinion had not yet been decided.
Army Court of Criminal Appeals
United States v. Strickland. In this GP case the Appellant pled guilty to a false official statement, rape, six sexual abuses of a child, and two rapes of a child. In addition, an enlisted panel convicted him of sexual assault and A&B. He was sentenced to 38 years, a DD, TF, and RIR. Appellant asserted IAC for failing to investigate alleged his racial abuse by a SGT before and during the trial.
The court addresses the post-trial actions, noting the "poor attention to detail." The issue was with the SJA.
The CA approved the sentence adjudged. However, the PTA protected the appellant for anything above 28 years.
The findings were affirmed and also a sentence to 28 years and the rest.
To quote [United States v.] Mack, 2013 CCA LEXIS 1016 (A.C.C.A. 9 Dec. 2013)] the post-trial processing of appellant's case reflects "adversely on the United States Army and the military justice system.""
When an individual authorizes a third party use of his cell phone without any express restrictions or limitations on its use, the contents of which are not encrypted or password protected, and provides the passcode for general access to the phone, he frustrates his expectation of privacy in the contents of the cell phone. In doing so, he provides the third party common authority over this cell phone and assumes the risk that the third party will allow others to view the contents of the cell phone, including government agents.
Navy-Marine Corps Court of Criminal Appeals
United States v. Dominguez., __ M.J. ___ (NM Ct. Crim. App. 2021).
Worth the Read
C. E. Martin, Judge-Alone Special Courts-Martial. ARMY LAWYER, No. 2, 2021, at 24.
The implementation of the Military Justice Act of 2016 (MJA 2016) brought with it the first completely new court-martial forum in over fifty years: the judge-alone special court-martial (JA-SPCM).1 As the Army approaches its 100th JA-SPCM since the forum came to life on 1 January 2019, now is the perfect time to examine how it has been put to use. By early indications, JA-SPCMs have potential both as a means for commanders to exercise expedient justice, and as a forum that is especially suited to allowing Soldiers who have committed minor misconduct to demonstrate rehabilitative potential.
The premise is a good one and there are opportunities not to be missed. But, I am not sanguine that the actual result will follow from the goal. For many years now the military has been in a zero-tolerance for defect mode. NJP these days can be a career ender just as a court-martial can also be. Gone are the days when we'd have senior enlisted people with multiple NJP and the occasional SCM in their record.
We regularly get asked if the SPCM conviction is a felony. Despite what a few good men might say, it could be. Many states look to the potential maximum punishment and not the forum to decide if a conviction is a felony for various purposes.
Jeffrey Abramson, Supreme Court Poised to Put Boston Marathon Bomber Back on Death Row. The Verdict, October 15, 2021 and From Boston to Brunswick, Georgia: The Perils of Jury Selection, The Verdict, October 21, 2021.
From the Supreme Court to the county courthouse in Brunswick, Georgia, judges are struggling this week with how to select impartial juries in cases attracting massive pretrial publicity.
The thrust of the articles is how to, or not to, impanel a jury in cases with significant media attention--we have had that concern in courts-martial have we not.
The Congressional Research Service has this update on legislative action to address extremism in the ranks.
FY2022 Military Personnel Issues: Extremism
Cheers, Phil Cave
-Current Term Opinions
Joint R. App. Pro.
Global MJ Reform
LOC Mil. Law