Week in Review

Air Force Court of Criminal Appeals

United States v. Lopez. In this GP case the Appellant was sentenced to 50 days, a BCD, but no reprimand. Appellant had, multiple times, used an intoxicating substance, marijuana, and LSD.

After remand to the convening for corrective action on post-trial errors, the Appellant appeared again to have addressed his previously filed three issues: did the CA err by acting before there was time to complete a "substantial assistance" memorandum, were the STR and EoJ wrong; and whether his post-trial confinement was "cruel and unusual?"

While AFCCA found no error, the discussion of the SAM is worth a read.

​Appellant acknowledges that the new Articles 60a and 60b, UCMJ, and the Rules for Courts-Martial that went into effect before the charges in Appellant’s case were referred for trial no longer require written advice from the SJA to the convening authority regarding action, only that the convening authority consult with the SJA before taking action. See 10 U.S.C. §§ 860a, 860b; R.C.M. 1109(d)(2); Executive Order 13,825, § 2, 83 Fed. Reg. 9889 (8 Mar. 2018). However, in Appellant’s view, therein lies the heart of the problem; he asserts that without a written SJA recommendation, this court can have no confidence the convening authority received complete and accurate advice. Appellant contends this concern is particularly acute in a case such as this where, he asserts, the trial counsel’s substantial assistance memorandum expanded the convening authority’s power to grant clemency to include the ability to modify his bad conduct discharge. Appellant further argues that under the rules in effect prior to 1 January 2019, the substantial assistance memorandum would have been attached to the SJAR or to an addendum to it, and thus would have been provided to the Defense.

Based on the changes to the post-trial process, Appellant's lack of transparency argument fails. This is so because the previous modicum of transparency is "no longer required by statute, executive order, or regulation."

​United States v. Bah. In this mixed plea case Appellant was sentenced to six-months, a BCD, and a reprimand. Appellant pleaded guilty to going UA and making a false official statement. The MJ found him guilty of an A&B. On appeal, appellant questioned the legal and factual sufficiency of the A7B conviction and claimed the charge should have been dismissed in response to a defense motion on a discovery issue. Bah! says the court.

The defense called a supervisor of Appellant to say he had been a good worker. When the TC cross-examined, 'unhelpful' statements of Appellant to the witness were elicited. The defense objected for failure to provide a MRE 304(d). The MJ excluded the testimony. Then defense then moved for dismissal or mistrial for a claimed Brady violation.

(Note for DC: all of this happened because, "when [the witness] spoke with trial defense counsel the week prior to trial, they did not ask him whether Appellant had made any statements about the alleged assault. However, when trial counsel interviewed him after the Defense spoke with him, XXX did provide information about Appellant’s statement." Had the questions been asked, the value added of a good military performance witness being devalued substantially would have been obvious. The TC was clearly wrong on the MRE 304(d), a cynic might think this was a sandbagging.)

Navy-Marine Corps Court of Criminal Appeals

United States v. Greene. In this GP case, Appellant willfully disobeyed a senior officer, violated a general order, abused his position as a recruiter, and was engaged in adultery and extramarital conduct. For which he was sentenced to 30 days, RIR from E-6 to E-1, and a BCD. He argued the BCD was too severe of a sentence. NMCCA didn't agree with him.

Not a likely appellate case anymore

Remember the Marine Raider found guilty of involuntary manslaughter in the 2017 hazing death of a Green Beret in Mali? Well it appears the sentence "decided by the jury, will include reprimand, reduction in paygrade to E-1, performing hard labor without confinement for 90 days and confinement for six months, according to his defense lawyer."

Worth the read

Jon O. Newman, On Reasonableness: The Many Meanings of Law's Most Ubiquitous Concept. 21 J. Appell. Prac. & Process 1 (2021).
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In many cases, appellate courts also invoke the concept of reasonableness without explaining it, but in some cases, they have tried to give meaning to “reasonableness,” the law’s most ubiquitous concept. Four different approaches can be identified, three of which employ what generously can be called an analysis, and a fourth, if it can be called an approach at all, that seems to lack any analysis. This article will consider each of these four approaches in three contexts in the hope that the resulting twelve sections will promote some understanding of what courts are not just saying, but actually doing in cases where “reasonableness” is the applicable standard.
. . . 
​Moving from colloquial speech to court interpretations, I start by briefly identifying the four approaches that some courts take with respect to the concept of “reasonableness”: (I) viewing reasonableness as a continuum, (II) balancing or weighing interests and effects, with a balance in favor of positive interests or effects considered reasonable and a balance in favor of negative interests or effects considered unreasonable, (III) articulating a standard, factor, or factors relevant to determining reasonableness and providing some guidance as to how that standard or those factors are to be applied, and (IV) determining reasonableness without identifying any method of analysis or any standard or factor.