Week in Review

​Please, if you haven’t already done so take a moment to visit our informal survey of trial experience here. The more responses we have the better we can have an understanding of the general level of trial experience across the Services. Thanks.

CCA ORAL ARGUMENTS

ACCA has one oral argument scheduled for 25 May 2021, the others do not have any scheduled.

AFCCA
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United States v. Taylor. In this MJ/GP case, Appellant was sentenced to 60 days confinement, a dismissal, a forfeiture, and a reprimand (are we seeing quite a few AF cases with a reprimand?). He was convicted of five specifications of 133 and two of fraternization. Yes, another post-trial error case. Interestingly, the court also had this to say.

​This case was docketed with this court on 4 November 2020, without an appellate defense counsel assigned. On 14 January 2021, this court sent a certified letter to Appellant advising him that his case was docketed with this court and informing him that he had 60 days to file a brief assigning any error pursuant to Rule 18(d) of the Joint Rules of Procedure for Courts of Criminal Appeals. JT. CT. CRIM. APP. R. 18(d). Appellant submitted no response. No appellate attorney has entered an appearance before this court on behalf of either Appellant or the Government.

The court also pointed out various errors and inconsistencies in the record itself.
The decision does not address the odd circumstances regarding the absence of appellate counsel. Perhaps they consider it mooted by their action on the case.
Remanded, and dismisses appellate jurisdiction. Judge Annexstad dissented.

​United States v. Helpingstine. In this MJA NG case, Appellant was convicted of two specifications of sexually abusing a child and was sentenced to three years, a DD, reduction, and reprimand. On appeal, he challenged the factual sufficiency of the evidence. Affirmed.

NMCCA

In Re Anderson (appearing pro se). He was convicted in 2012 in a GP for attempted rape of a child, rape of a child, indecent liberties with a child, using indecent language, fraudulent enlistment, possession and distribution of CP, communicating a threat, and wearing unauthorized medals and badges. He was sentenced to 30 years, a DD, and a reduction.

Petitioner seeks extraordinary relief in the nature of a writ of habeas corpus, asserting that while in pretrial confinement he was subjected to unlawful pretrial punishment; that the military judge failed to properly inquire into the Article 13 waiver contained in his pretrial agreement, rendering his pleas improvident; and that his trial and appellate counsel were ineffective in failing to identify, advise him about, and litigate the issue.

We find he has not met the threshold requirements needed for us to consider the merits of his Petition.

In January 2020, we received a letter from Petitioner with the subject line, “Erroneous Article 66 Review Findings,” in which he asserted that “insufficient Article 66 review . . . [had taken] place in [his] case and . . . request[ed] a new Article 66 review and appropriate relief.” He also purported to submit a claim under Article 138, UCMJ. We denied his claims for lack of jurisdiction, noting his series of filings and stating that any future filings which failed to provide a prima facie basis for this Court’s jurisdiction would be summarily denied.

After filing the instant petition the court said, "However, we will not summarily deny Petitioner’s habeas claims for lack of jurisdiction. Instead, in keeping with our reasoning in Jordan, we will evaluate Petitioner’s current pro se writ petition as “a coram nobis [‘before us’] claim.”
Having failed to satisfy at least three of the CM requirements the writ is denied.

Will he file a pro se writ appeal petition to CAAF? Is he doing this because he’s been told he must exhaust remedies in the military courts before filing for federal habeas corpus where he can argue his issues did not receive full and fair consideration in the military appellate courts?

United States v. Gonzalez. An MJA sentenced Appellant to 24 months, a BCD, and such. The case relates to alleged errors in the entry of judgment.

PENDING APPELLATE CASES
United States v. Morales-Sanchez. It appears the MJA convicted the Appellant of a “laundry list of charges including murder and assault.” He was sentenced to “nearly 40 years” confinement and a DD.
 
WORTH THE READ

• DoD Annual Reports Show Significant Increases in Sexual Assault Accusations Deemed “Unfounded.” This “analysis” is produced by the Center for Military Readiness. You can see more about CMR here to make your own evaluation.
  
• Haley Britzky, This Army unit will now immediately start separaring soldiers found guilty of assault or harassment. Task & Purpose, 10 May 2021.

he 18th Airborne Corps has directed that anyone found guilty of sexual assault or harassment will immediately begin the process for administrative separation, marking a significant departure from how assault and harassment are handled elsewhere in the Army.
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The changes are a direct result of a series of pitches soldiers made during the corps’ Dragon’s Lair, a Shark Tank-esque challenge open to the roughly 90,000 service members in the corps, and thousands more family members and Army civilians. The changes went into effect on May 1 and have been recommended to Army leadership to be made into service-wide policies.

More for those in the trenches, servicemembers First Amendment issues are becoming more frequent in the discipline process. As an example, Davis Winkie, Army major fights punishment for anti-transgender social media posts. Army Times, 12 May 2021.