CAAF Grants Petition For Review in Vanvalkenburgh

8/19/2020

No. 20-0294/AF. U.S. v. Ryan M. Vanvalkenburgh. CCA 39571. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

I. WHETHER RULE FOR COURTS-MARTIAL (R.C.M.) 912(f)(4) VIOLATES A SERVICEMEMBER'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL.

II. WHETHER APPELLANT WAIVED, FORFEITED, OR PRESERVED A CHALLENGE TO THE CONSTITUTIONALITY OF R.C.M. 912(f)(4).

Link here.

Editor's note: FYI RCM 912(f)(4) relates to member selection/striking.

Elizabeth Berecin

Research Fellow

Scott

8/20/2020 10:10:28 am

AFCCA opinion: https://afcca.law.af.mil/afcca_opinions/cp/vanvalkenburgh_-_39571.u.pdf

Brenner M. Fissell

8/20/2020 12:42:05 pm

thanks!

Phil Cave link

8/20/2020 12:40:58 pm

GP: to one specification of sexual abuse of a child, one specification each of possessing child pornography and violating 18 U.S.C. § 2423(e) by attempting to travel into the United States for the purpose of engaging in illicit sexual conduct.

OffMbrs sentence: DD, One Yr., TF, RIR-E1, and a reprimand--yep, that really really severe reprimand. The PTA was of no effect.

"On appeal, Appellant raises one issue through counsel: whether the military judge erred in denying the Defense’s challenge for cause against one of the members, Major (Maj) KP. Appellant personally raises three additional issues pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982): (1) whether the military judge erred in allowing trial counsel to elicit testimony regarding the availability of sex-offender treatment in confinement; (2) whether the military judge erred in denying a defense motion to suppress the fruits of a search;3 and (3) whether a mandatory dishonorable discharge amounts to cruel and unusual punishment. We find no error that materially prejudiced a substantial right of Appellant and affirm the findings and sentence."

At trial Appellant challenged a member for cause--a challenge denied. The defense then preempted that member. The defense then did what we used to do before 2005 and told the MJ that they would have used their preempt against another member but for the denial of the challenge for cause. As many of us know that was the way to preserve error until the RCM change.

IMHO [insert cynical emoji] the rule change was because the Government didn't like the effect of the rule. And keep in mind the severely restrictive number of preempts in the military compared to civilian practice. In those days, and up until January 2020, both sides might engage in the "numbers game," especially the defense. It was generally considered that mathematically seven was the best number for the defense followed by five then 11.

IMHO the real "adverse" effect of the old rule was the defense, in the Government's eyes, was gaming quorum and could effectively deny the gubmint of their preempt or to go below quorum and deal with the hassles of that--which could of happened here. There were also some cynical concerns that MJs also were watching the numbers and would deny proper challenges to avoid going below quorum with the associated delays.

Here, they started with 12--defense challenged three (two were granted) and apparently would have preempted a fourth. Had the MJ granted all three that would put the Government on the horn's of a dilema with their preempt--what to do, what to do.

Of course we have the new rule since January on picking a jury--the same Government concern still applies methinks. But gone is the numbers game.

Now on appeal, Appellant argues the military judge’s decision not to grant the challenge of Maj KP put the Defense in the “untenable position” of deciding whether to use his peremptory challenge against Maj KP or Capt AC, who had substantial experience working with sexual assault victims. Appellant contends his trial defense counsel faced the choice of using his peremptory challenge against Maj KP, thereby precluding appellate review of the challenge for cause, or peremptorily removing Capt AC, thereby risking a complaint of ineffective assistance from Appellant for not removing Maj KP, whom counsel felt strongly enough about to challenge for cause in the first place.

Under Rule for Courts-Martial (R.C.M.) 912(f)(4), “When a challenge for cause has been denied[,] the successful use of a peremptory challenge by either party, excusing the challenged member from further participation in the court-martial, shall preclude further consideration of the challenge of that excused member upon later review.” Since R.C.M. 912(f)(4) was amended in 2005, the use of a peremptory challenge to remove a member from the panel has operated to preclude appellate review of the ruling on an earlier challenge for cause of that member. See United States v. Spear.

IMHO, the current rule serves to deprive an accused of the one peremptory challenge--that is unfair. If the parties had three or more preempts, then I'd have less heartburn. The question now for CAAF is whether the unfairness leads to a constitutional deficiency.

Standing by to read the Supplement and any Reply.

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CAAF Grants Petition For Review in Vanvalkenburgh

Elizabeth Berecin

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