Army Times reports here that the Army has appointed its first civilian CID director.
See? Civilianization isn't so bad.
I recently applied to be admitted to NMCCA. The process was seamless, contactless, free, and quick.
I received a nice looking certificate today:
The Navy JAG Facebook page just posted this update:
On July 2, after an academically rigorous and stressful three weeks, over fifty of our military's most accomplished and credentialed attorneys and justice practitioners graduated from the 64th Military Judges course at the Judge Advocate General's Legal Center & School. These graduates are now the most visible symbols - and central figures - of a military justice system. Their time of the bench will bea mong the most challenging and rewarding assignments they will ever undertake. In the face of staunch criticism from very high places, they will make the tough calls, tune out the noise, and fiercely guard their independence. They will be the very definition of principled counsel. Ultimately, as military judges, they will ensure our military justice system is just, efficient, and effective because lives literally depend on it. Bravo Zulu!
Good luck to the new military judges.
This case has come before this Court for the second time. See United States v. Navarette, 79 M.J. 123 (C.A.A.F. 2019). During the lengthy appellate process, Appellant has sought a Rule for Courts-Martial [R.C.M.] 706 inquiry to investigate his mental status. Originally and upon remand from this Court, the United States Army Court of Criminal Appeals (CCA) found that Appellant failed to raise a substantial question as to his mental condition. We disagree and reverse.
Writes Senior Judge Stucky for three members of the court. Judges Maggs and Hardy dissented.
Another way servicemembers convicted at court-martial receive less than their civilian counterparts convicted in state or federal court, whom they signed up to defend?
Hubbard is an Innocence Project Act (18 U.S. Code sec. 3600) case brought by a military prisoner.
The panel affirmed the district court’s dismissal for lack of subject-matter jurisdiction of a petition brought by U.S. Army Private Clifford Hubbard seeking DNA testing under the Innocence Protection Act (“IPA”).
Add this to Congress's to-do list along with unanimous verdicts and direct access to the Supreme Court?
Cheers, Phil Cave
From the NewspeakNewsBureau and a hat-tip to GMJR.
Thompson gives leeway to military law enforcement to not gather certain statements for tactical reasons.
In Thompson, the underage victim had trouble remembering all of her interactions with the accused, so she wrote them down on a timeline. The interviewing CID agent deliberately did not gather this writing. The victim eventually lost it. After her trial testimony, defense counsel moved to strike under R.C.M. 914 because the government could not produce the timeline. The trial judge denied the motion, as did the ACCA.
R.C.M. 914 implements the Jencks Act, 18 U.S.C. § 3500, requiring that, upon motion, a pertinent statement of a witness that is in the government's possession be disclosed after his or her testimony.
Thompson argued to C.A.A.F. that the government constructively possessed the statement because CID had access to it and "consciously avoided collecting it." C.A.A.F. had not previously considered this constructive possession argument. The Court was unconvinced, ruling that there was no R.C.M. 914 violation because the written statement was never in the possession of the United States.
Chief Judge Ohlson concurred in the result because the statement was not lost in bad faith. But he disagreed that the statement was not in the government's possession since it had been offered to government agents and pertained to the witnesses' testimony. See generally United States v. Stellato, 74 M.J. 473 (C.A.A.F. 2015); United States v. Muwwakkil, 74 M.J. 187 (C.A.A.F. 2015).
Chief Judge Ohlson's "grave concern" is that the majority approach
will incentivize government agents "to avoid the consequences of R.C.M. 914’s clear language and intent simply by [purposely] failing to take adequate steps to preserve statements." Muwwakkil, 74 MJ at 192. As stated in Appellant’s brief, a holding such as the majority’s will "encourage law enforcement personnel to intentionally avoid collecting relevant evidence for fear it might not fit the government’s theory of the case and [then] they [will] have to disclose [any exculpatory] evidence to the defense."
You don't see this every day!
"Order Granting Petition for Review
No. 21-0235/AR. U.S. v. David C. Tate. CCA 20180477. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
WHETHER THE TRANSCRIPT OF APPELLANT'S TRIAL IS SUBSTANTIALLY VERBATIM.
Briefs will be filed under Rule 25."
I expect we all are getting questions about refusing the COVID-19 vaccination should the President sign a waiver IAW 10 U.S. Code 1107.
(Ed. update: It seems an order is on its way for September.)
There is discussion in the ether that the COVID vaccines are not "experimental," rather it is the difference between their being authorized and approved. Regardles, while trying to figure out the enforceability of the order to be COVID-19 vaccinated, several items may be of interest or use.
Cheers, Phil Cave
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.
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.
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.).
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.
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.
A useful discussion of fraternization and a reminder to the government. I'll let you read the other 72 pages of opinions.
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.”).
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.
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 .
The Committee on Rules of Practice and Procedure Judicial Conference of the United States has issued a call for public comment to various proposed rules changes.
Go to p. 299 for the proposed evidence changes (unless you are a CCA or CAAF and want to see if there's anything useful in the rules of appellate procedure).
Of particular note are proposed changes to Fed. R. Evid. 106, 615, and 702--rules we use in courts-martial.
As you know, should any federal rule be changed, the change automatically changes the Mil. R. Evid, unless the President directs otherwise. See Mil. R. Evid. 1102.
Don't worry, the request for comments sets a due date of February next year, so any rule change is not likely to apply to a court-martial before--say--2024 or 5 (unless the JSC recommends an earlier change for adoption in the next E.O).
Cheers, Phil Cave
From the NewspeakNewsBureau desk.
United States v. McPherson, a case about the interpretation of a statute of limitations provision, was released yesterday.
Editor's note: Judge Maggs's disquisition regarding the "absurdity doctrine" was interesting. However, if he believes that the test is whether “‘[a] rational Congress’ could have intended that meaning," then his reliance on that doctrine in Bergdahl is indefensible. Could a rational drafter have intended to apply the UCI provision to the President? Of course.
"No. 21-0306/AR. U.S. v. James M. Madden. CCA 20200205. On consideration of Appellant's petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted and the decision of the United States Army Court of Criminal Appeals is affirmed.*
* It is directed that the Statement of Trial Results Findings Worksheet be corrected by substituting the word "groin" for the word "buttocks" in Specification 1 of Charge II and substituting the word "buttocks" for the word "groin" in Specification 2 of Charge II."
Editor's note: This now makes the case reviewable at SCOTUS, while hundreds of other denials of review are ineligible.
Read the G's filing in Martinez below.
The long anticipated move is now being made. Readers can use the search bar to find extensive discussions of the legality of this order in an older post, with links to a longer discussion at Lawfire.
Who could argue with that?
(Ed. note: H.R. 4790)
(Ed. note. See Murl A. Larkin, Should the Military Less-than-Unanimous Verdict of Guilt be Retained? 22 Hastings L.J. 237 (1971).
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