CAAF is hearing cases this week and lists them as "Project Outreach." Does anyone know if CAAF is physically travelling?
Prof. Berman at Sentencing Law & Policy, has this note.
The Supreme Court generally does not view itself as in the business of error correction, but it still sometimes finds a few criminal cases in which it just cannot resist fixing what looks like an incorrect ruling below. Today's order list, for example, brings a per curiam summary reversal in Mays v. Hines, No. 20–507 (S. Ct. Mar. 29, 2021) (available here), in which the Court corrects the work of the Sixth Circuit via an eight-page opinion that starts and ends this way:
United States v. Olson.
Appellant was convicted by a military judge of two specifications of rape, one specification of assault consummated by battery, and one specification of making a false official statement. The military judge sentenced appellant to eight years Army rations complemented with a Duck Dinner and two sides.
Appellant raised the following issues: (l) error in admitting prior consistent statements made by the victim; (2) error in admitting testimony as to the victim's character for truthfulness; (3) error in allowing a government expert to testify about matters outside the scope of her expertise during redirect examination; and (4) ineffective assistance of counsel.
The court found the issues to be without merit. The court did address a claim on appeal of UMC but declined to exercise its authority to give relief for the waived error. The court found no prejudicial error for evidence of the victims "virginity" at the time of the offense, or evidence of an STD, or evidence about a polygraph result. In addressing the cumulative error doctrine the court said,
Given the number of errors in this case, we must also consider the cumulative effect of the erroneously admitted evidence. "[A] number of errors, no one perhaps sufficient to merit reversal, in combination [may] necessitate the disapproval of a finding." We review the cumulative effect of plain and preserved errors de nova. Id. We reverse only if we find that the cumulative errors denied appellant a fair trial. Id. In this case there was strong evidence of appellant's guilt and none of the errors related to improperly admitted evidence materially prejudiced appellant's substantial rights. As previously discussed, the strength of the government's case was based upon appellant's devastating admissions to law enforcement, the victim's testimony about the assault, the victim's subsequent demeanor and immediate disclosure to multiple friends. Under the circumstances of this case, we find appellant was not denied a fair trial.
Some readers may remember that I am attempting to study the condition of military prisons, beginning with Marine Corps brigs. To that end, I filed this FOIA request last November: "Please provide all Article 138 complaints filed by prisoners in USMC Brig Camp Pendleton and USMC Brig Camp Lejeune from 1/1/2010 to 11/1/2020." After four months, I received a response denying my request:
"This responds to your November 17, 2020, Freedom of Information Act (FOIA) request for “all Article 138 complaints filed by prisoners in USMC Brig Camp Pendleton.”.... Please be advised, a proper FOIA request must “reasonably describe” the records sought. Requests that seek “any and all” documents/records, “any documents or information,” or “all documents/information” are impermissibly broad and do not comply with FOIA's requirement that the request for records reasonably describe such records. For the foregoing reason, we will administratively close this request."" This was signed by a lieutenant colonel in the Marine Corps with the title of SJA.
I have no doubt that gaining access to these records would take months, if not years, and would require a federal court lawsuit. Why does it have to be this hard? I know that FOIA has been used to great effect in the Bergdahl litigation and in other instances, but I would bet that on the whole it is pretty much useless unless one is willing to expend substantial time and resources. FOIA has not lived up to its promise.
On March 24, 2021, in an unpublished opinion, AFCCA affirmed the findings and sentence in United States v. Rothe. (Opinion here.)
Appellant connected with a girl who he thought was a 14-year-old high school freshman named “Amanda.” However, “Amanda” was an online persona developed by AFOSI agents as part of a child sex sting operation. Over the next two months, Appellant continued to engage in sexual conversations with “Amanda,” including sending explicit photos of himself. The Appellant was arrested and charged with two specifications of attempting to commit a lewd act on a child under the age of 16 in violation of Article 80, UCMJ. A general court-martial composed of officer members convicted Appellant of both specifications and sentenced him to dismissal from the Air Force. On appeal, Appellant raised two issues.
First, Appellant claimed that the military judge should have abated the proceedings after the Government inadvertently deleted raw data from the iPad that AFOSI agents used when posing as “Amanda,” instead of only relying on a PDF file composed of screenshots of their conversations and raw data from Appellant’s phone. For the military judge to abate the proceedings under R.C.M. 703(f)(2), Appellant was required to show that there was no adequate substitute for the missing evidence, that the evidence was essential to a fair trial, and that the defense was not at fault for the missing evidence. See also United States v. Simmermacher, 74 M.J. 196 (C.A.A.F. 2015).
[Insert hyperbole and cynicism] Let us generally look at how the analysis of lost evidence works.
OK, thinking about this some more,
OK, let us try another way.
-Current Term Opinions
Joint R. App. Pro.
Global MJ Reform
LOC Mil. Law