Week in Review

Air Force Court of Criminal Appeals

United States v. Brown. This is an Order,  likely one of several to come, post-CAAF's decision to vacate the decision in Brubaker-Escobar.
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United States v. Wermuth. Appellant pleaded guilty to possession and distribution of CP; for which the MJ sentenced him to three-years, a DD, and RIR. On appeal he raises four issues.

• Error in admitting victim impact statements attached to the stipulation of fact (thereby making the "evidence."
• Improper TC sentencing argument.
• Post-trial processing error.
• Horrible civilian post-trial confinement conditions.

Finding error on the post-trial papers, the appeal is delayed while the case is sent back for correction. Judged Lewis dissents based on several factors and some of his past writing.

• Appellant does not "attempt to show prejudice."
• There is no "colorable" claim of prejudice because the Appellant waived the right to submit a clemency request.
• There was no motion for a post-trial hearing IAW R.C.M. 1104(b)(2)(B).

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​In evaluating the convening authority’s decision memorandum, I adhere to the approach I have used in prior cases including United States v. Aumont, No. ACM 39673, 2020 CCA LEXIS 416, at *29–37 (A.F. Ct. Crim. App. 20 Nov. 2020) (en banc) (unpub. op.) (Lewis, S.J., concurring in part and in the result), rev. granted, ___ M.J. ___, No. 21-0126, 2021 CAAF LEXIS 389 (C.A.A.F. 4 Mar. 2021), and United States v. Finco, No. ACM S32603, 2020 CCA LEXIS 246, at *13–16 (A.F. Ct. Crim. App. 27 Jul. 2020) (unpub. op.). ​

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​United States v. Washington. Appellant was "Dismissed" because  members convicted him of abusive sexual contact, conduct unbecoming, and five instances of fraternization (but acquitted of three other Article 133 specifications). Appellant raises three errors.

• Legal and factual sufficiency.
• Error in striking part of Appellant's trial testimony.
• Excessive post-trial delay.​

We have a mixed opinion on what happened here.

​Senior Judge POSCH delivered the opinion of the court. Judge RICHARDSON filed a separate opinion concurring in part, dissenting in part, and dissenting in the result in part. Judge MEGINLEY filed a separate opinion concurring in part, dissenting in part, and dissenting in the result in part.
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A divided three-judge panel of this court considered Appellant’s claims and the court reached the following result: the findings of guilty as to Charges I and II and their specifications are affirmed. The findings of guilty as to Specifications 1 through 4 of Charge III are set aside and those specifications are dismissed with prejudice. The findings of guilty as to Specification 5 of Charge III and as to Charge III are set aside and Specification 5 of Charge III and Charge III are dismissed without prejudice to the Government’s right to reinstitute court-martial proceedings against Appellant for the same offense. The sentence is set aside and a rehearing is authorized as to Specification 5 of Charge III and Charge III, and the sentence. We reach this result in separate opinions of the judges assigned to a duly constituted panel of this court[.]
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A useful discussion of fraternization and a reminder to the government. I'll let  you read the other 72 pages of opinions.
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​The fact that officers are held to a higher standard of conduct does not diminish the Prosecution’s burden. United States v. Appel, 31 M.J. 314, 320 (C.M.A. 1990) (“[A] custom is not a subject for judicial notice . . . . With respect to the Air Force custom against fraternization . . . no one can say . . . that the extent of this custom is so clear as to dispense with the requirement of proof.”).

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United States v. Bailey. GP to indecent liberties with a child abusive sexual contact with a child, sexual abuse of a child, rape of a child, and obstruction of justice; for which the MJ sentenced him to 25-years, DD, TF, RIR, and a reprimand. There are two issues on appeal.

• Did the MJ err by allowing TC to read into the record an unsworn victim impact statement and overruled objections to some of the content.
• Is Appellant's sentence appropriate when he is also serving a 10-30 year sentence in Nevada for similar offenses against his biological daughter.

The court finds no prejudicial error and affirms.
The court did find that it was error to allow the TC to read the VIS. It was not prejudicial for several reasons including "minimal additional value in light of the already admitted evidence of Appellant’s serious crimes." As to the content of the VIS, the court recognized that the MJ orally stated some limitations on what or how he would consider the statement .

Army Court of Criminal Appeals

United States v. .Tanski-Jett. Appellant pleaded guilty to attempted sexual assault of a child and attempted sexual abuse of a child, for which he was sentenced to two years, a DD, TF, and RIR. The court had to resolve an ambiguity between the action and an agreement to waive forfeitures post-trial.

Worth the read

• Robert S. Peck, Do Rhetorical Flourishes Have a Place in Judicial Opinions...or Appellate Briefs? Appellate Advocacy Blog, Aug. 1, 2021.
• Sinha, Maneka, Radically Reimagining Forensic Evidence (July 22, 2021). Alabama Law Review, Forthcoming, U of Maryland Legal Studies Research Paper No. 2021-10, Available at SSRN: https://ssrn.com/abstract=3891788. **

Junk science presented in criminal trials has caused countless wrongful convictions. This has been known since the 1990s, when DNA retesting in closed cases revealed that much of the forensic evidence used to secure convictions was hugely flawed. Such revelations have triggered considerable research and scholarship aimed at improving forensic science methods and preventing the use of unreliable forensic evidence in criminal cases. Despite these efforts, the forensic science system remains insulated from scrutiny and junk science persists in trials.

Against this backdrop, this Article makes two interventions. First, it uncovers dual forces that have led to the development of a forensic science system with deep, structural flaws. The system resists reform because prosecutors act as a collective body to thwart reform efforts. At the same time, the forensic community itself works to manufacture a perception that forensic methods have established scientific validity when, in fact, many have not.
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** SSRN is an excellent resource along with Google Scholar for finding free articles about relevant legal issues.