Prof. Colin Miller alerts us to the Sixth Circuit's decision in McNeill v. Bagley.
So, in a murder/shooting case with no physical/forensic evidence, does the State violate Brady by failing to disclose (1) that the State's key eyewitness, who had a longstanding relationship with the defendant, told the police on the night of the murder that the defendant was NOT the shooter; and (2) a police report regarding an alternate suspect?
In a 2-1 decision, the appeals court tells us that the, admittedly withheld, information was not material under Brady.
McNeill Jr. was convicted and sentenced to death in Ohio state court for the aggravated murder of Blake Fulton. McNeill appeals the district court’s denial of his petition for habeas corpus, in which he argued that the prosecution in his case failed to turn over material under Brady v. Maryland and created a false impression in violation of Napue v. Illinois. The alleged Brady material included two police reports, one summarizing an interview with the prosecution’s primary witness, Robert Rushinsky, who initially failed to—but ultimately did successfully—identify McNeill as the culprit, and the other detailing a potential suspect who was quickly dismissed as a suspect by the police. It also included three audio recordings, one of the same Rushinsky interview addressed in the report, a second Rushinsky interview, and a third interview with a potential alibi witness, Marko Roseboro. The warden concedes that these materials were withheld (with the exception of the audio recording of the first Rushinsky interview, which was actually played at trial), but argues that McNeill’s arguments are procedurally defaulted and, in the alternative, that none of the evidence was material as defined by Brady. We agree as to the materiality of the evidence and affirm the district court. We also agree with the district court that the prosecution did not create a false impression at trial.
United States v. Guinn.
This is the second appearance where an enlisted panel convicted appellant of one sexual abuse of a child, but not guilty to rape of a child. Appellant was sentenced to a DD, four years, etc. ACCA affirmed only two years and six months confinement.
[A]ppellant's sentence was inappropriate due to a confinement facility policy which violated the First Amendment by preventing appellant from having any form of contact with his non victim biological children without first completing a sex offender treatment program and admitting his guilt. See United States v. Guinn, _M.J. _, 2021 CAAF LEXIS 439, at *20 (C.A.A.F. 10 May 2021) (holding Article 66(c), UCMJ, creates a "duty to determine whether Appellant's approved sentence, as executed, was correct in law and was appropriate"). We will grant relief in our decretal paragraph.
See United States v. Goodell, below, pending review at the CGCCA.
United States v. Davis. Returned to the field for post-trial processing error.
United States v. Butler. The Appellant was sentenced to 12 months, TF, and a reprimand by a military judge who found him guilty of aggravated assault and being drunk and disorderly. A split panel dismissed the charges for UCI (under the old UCI law). The three appear to agree that the findings were factually and legally sufficient.
A divided three-judge panel of this court resolves the first and second issues against Appellant, and resolves, in part, the third issue in Appellant’s favor: we find unremediated actual and apparent UCI in the accusatory phase of Appellant’s court-martial. We therefore set aside the findings of guilty and the sentence and dismiss the charges and specifications without prejudice[.]
Judge Meginley "concurring in part, dissenting in part, and dissenting in the result in part). Go to page 2 of the slip opinion and see an interesting summary of how the panel came to the decision.
United States v. Mena. Appellant pled guilty to violating a lawful order, using cocaine, false official statement, aiding and abetting distribution of cocaine, for which he was sentenced to a Bad-conduct discharge, confinement for 110 days, forfeiture of $1,120.00 pay per month for 3 months, reduction to E-1, and a reprimand. There were two assignments of error.
Appellant argues that the delay of 44 days between when the convening authority declined to take action on the findings and sentence and the docketing of the record of trial with our court is facially unreasonable and warrants sentence relief. Appellant notes that she served 72 days of her confinement sentence before the record of trial was docketed with our court.
The court finding no error or prejudice affirmed the findings and sentence.
United States v. Silvernail. An enlisted panel convicted Appellant of dereliction of duty, four assaults and battery, two aggravated assaults, and unlawful possession of a firearm. The panel sentenced him to confinement for two years, TF for 24 months, and RIR to E-1. (You did not read that wrong, no punitive discharge.) There were eight issues.
Coast Guard Court of Criminal Appeals
United States v. Goodell, II, is pending at the court and the briefs are online.
In light of ACCA's Guinn decision, what say you to this assignments of error?
WHETHER SR GOODELL’S GUILTY PLEA WAS VOLUNTARY WHERE IT WAS OBTAINED THROUGH A PROMISE TO RELAX AN ORDER PROHIBITING COMMUNICATION WITH HIS SON?
Asking, but not deciding, is there caselaw suggesting that such "offers" by law enforcement during interrogation would be coercive making any confession involuntary? Asking, but not deciding, is there a sufficient analogy to law enforcement using coercive techniques to get a guilty plea? And, asking without deciding, what if the term originates with the accused? I remember the good old days when we had to go through the ballet of who first broached the judge alone term in a PTA.
Another interesting issue before the CGCCA is whether a mistrial is appealable under Article 62, UCMJ.
United States v. Montealegrcharro. In this GP case, Appellant was sentenced to 10 months confinement (eight months suspended), and a RIR, for wrongful use and distribution of LSD.
United States v. Gattis, __ M.J. ___ (N-M Ct. Crim. App. 2021). MJ sentenced him to 36 months, RIR, TF and a BCD, based on a GP for attempted sexual assault of a child.
Appellant asserts one assignment of error: his court-martial was tainted by actual and apparent unlawful command influence [UCI] stemming from his chain of command forbidding members of the command from talking with defense attorneys. We find no prejudicial error and affirm.
But, just in case CAAF feels differently, the court found the gubmint had established BRD that there is no actual UCI.
Specifically, CMC Charlie’s initial message, sent to the NIOC Hawaii CPO Mess and subsequently forwarded to Appellant’s entire division, said that command personnel were not authorized to speak with defense counsel who called.
Perhaps this quote should grab CAAF's attention (assuming it gets past the waiver issue). The message here is, you should not talk with defense counsel about the case until that has been screened by the SJA. This is not uncommon in the Navy. This is remeniscent of an issue some years ago when an SJA told the defense they could not interview witnesses while a case was still under investigation. The writ the defense filed in that case was mooted when the issue was resolved out of court in the DCs favor.
Certainly, CMC Charlie’s message to the CPO Mess was poorly worded. At first blush, the message appeared to interfere with the rights of Sailors accused of offenses whose defense counsel were appropriately attempting to interview potential witnesses. Yet, the Government has established that this message was not an improper manipulation of the criminal justice process. Although the message stated that NIOC Hawaii personnel were not authorized to speak with defense attorneys who called, the very next sentence in the message directed command personnel to refer any such inquiry to the command’s legal office. We are persuaded beyond a reasonable doubt, as was the military judge, that CMC Charlie’s intent in sending such a quick and strong message was to attempt to stop the impact of unusual inquiries made to members of the command that he could not confirm were legitimate inquiries.
This leads to a, nonexclusive, list of questions, methinks.
1. Don't talk to a defense counsel unless you want to visit the SJA and perhaps XO or CMC.
2. The SJA can screen defense witness interviews. (Although as a practical matter the SJA does the right thing and says go ahead.)
2. Don't trust someone who calls and says I'm a defense counsel and would like to talk to you about X, my client.
3. Be careful what you say to a defense counsel, they may be making "illegitimate" inquiries of you.
4. Do not trust defense counsel their inquiries are not always legitimate so you need SJA clearance to talk with them first.
5. Does this create subtle pressures not to cooperate with the defense and distruct them because you don't want to get on the wrong side of the CMC (CSM, Shirt) or the SJA.
6. What happens when the SJA says, you can talk, but please report back to me what you were asked about. Does this have an impact on the defense's legitimate investigation.
7. What happens when the SJA says that's not a legitimate question. Assume the accused is charged with dereliction by not completing maintenance (or gun-decked tagouts)--and DC calls the client's LCPO to ask about the required process and documentation as part of the defense investigation. Does the chief have to get SJA clearance for that.
8. Does it matter what the intent of the writer was compared to the potential impact on the audience--kinda like a Thompkins issue--it's not the motive for an error it's the effect of the error.
New York Superior Court (Kings County)
Is a SUMMARY court-martial a conviction, a la Middendorf v. Henry?
Is someone convicted at SUMMARY court-martial for a registerable offense--required to register as a sex offender?
For the blink of an eye in New York for one former servicemember the answer was no to the registration question. See Coram v. Board of Examiners, Sex Offender Registry of the State of New York, 195 Misc. 2d 392, 758 N.Y.S. 2d 235 (2003).
Convicted at SUMMARY court-martial for "Indecent Assault" and "Sodomy by Force Without Consent,"--the person is required to register in N.Y. as a sex offender? In this case, the Attorney General agreed that Coram was not subject to registration and the petition to vacate the registration order was granted. The court relied on Middendorf v. Henry, 425 U.S.. 25 (1976) to find that a SCM "conviction" was not a conviction for registration purposes, according to the case status at the time. But there's a kicker, read further into the case.
The court did note some "mystery" about the AG's process in the case. There were amendments to the NY registration statute which affected Coram and future cases. Coram discusses the statutory changes. If you have client in NY with a SCM for an otherwise registerable offense, read Coram.
It appears that regardless of a summary court-martial not being a conviction, the "conviction" is sufficient to require registration?
So, I think, be aware that if you are negotiating a PTA for a SCM in lieu of a SPCM or GCM, thinking that may avoid registration because it is not a "conviction," you may actually need to give Miller advice--definitely, I think, if the client is going home to NY. But what about other states? Also, what about the client you are representing and are negotiating prior to trial?
Check out also, People v. Kennedy, 20 A.D.3d 137, 797 N.Y.S. 2d 219 (2005). The petitioner here was convicted at SPCM or GCM (he got a BCD).
Possible appellate cases
United States v. SMSgt N.S. GCM scheduled for Monday, Aug. 23, on two specifications of sexual assault, two specifications of abusive sexual contact, and two specifications of assault consummated by battery. fox21news. And Gazette.com.
United States v. MSG A.A. Army Times describes the accused,
A senior Army NCO and elite athlete stationed at Fort Carson, Colorado, will face a general court-martial in December on charges that he sexually assaulted two women, according to charging documents.
No longer possible appellate cases
Army prosecutors have determined no charges should be filed against multiple instructors at Fort Sill, Okla., who were accused of sexually assaulting a soldier in training, base officials announced. Military.com.
Cheers, Phil Cave
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