Dateline: 28 August 2020
On 27 August 2020, CAAF issued its opinion in United States v. Bergdahl, an analysis is being written—standby.
This past Saturday CAAF published a 19 August 2020 Order, No. 20-0342/AR. United States, Appellant v. Dashaun K. Henry, Appellee. CCA 20190688. Appellant's (Government) motion to stay the trial proceedings is granted, and the trial proceedings are stayed pending further order of the Court.
In Re Jordan 80 M.J. ___ (N-M.C. Ct. Crim. App. Aug. 27, 2020) (filed pro se), is a significant case of collateral attack of a conviction by a prisoner whose conviction is final. The en banc court held they lacked jurisdiction under the All Writs Act either for habeas corpus or coram nobis. Standby for an analysis and comment from Don Rehkopf— “The Military’s Schizophrenic Writ Practice.”
In United States v. Faus, decided 27 August 2020,
In United States v. Castro, appellant contends that the military judge abused his discretion by accepting appellant's guilty plea to stealing gas from the GSA. Appellant does not fault the military judge's Care' inquiry as such, but rather contends that the
government charged the case incorrectly. More specifically, appellant claims that he could not have stolen gas from the GSA, because the GSA never possessed the gas.
[The court] reject[s] appellant's claim and affirm[s].
The AFCCA decision in United States v. (not Hugh) Jackman, No. ACM 39685 finds (again) defect in post-trial processing and remands for a do-over.
The AFCCA decision in United States v. Nolen, No. ACM S32559, says that,
The AFCCA decision in United States v. (not Harry) Kane, No. ACM 39590, says that,
The AFCCA decision in United States v. (not Deborah) Kerr, No. ACM S32570, saves some time because, “Appellant [only] raises one assignment of error on appeal: whether he is entitled to new post-trial processing because the staff judge advocate’s recommendation (SJAR) misstated the authority of the convening authority to grant clemency and the addendum to the SJAR failed to correct the error. We find the errors do not require new post-trial processing and action and affirm.
In the AFCCA decision in United States v. (not Blake) Griffin, No. ACM S32638, is not worth the read.
In the AFCCA decision in United States v. (definitely not Jen) Matichuk, No. ACM S32611, the Appellant thought his sentence didn’t agree with him for “one specification of wrongful use of a controlled substance on divers occasions and one specification of wrongful distribution of a controlled substance on divers occasions[.]” AFCCA did not agree and prescribed Pepcid twice a day.
In the AFCCA decision in United States v. Simon (not Templar), No. ACM S32569, the court says that,
In the AFCCA decision in United States v. (definitely not Olympia) Snow[e], No. ACM S32584, the court says that, well—never mind—it’s another post-trial error case.
In the News—pending appellate cases.
The Navy fired three SEAL leaders in the aftermath of the alleged rape on the Iraq air base and charged one operator, an enlisted SEAL, with sexual assault, aggravated assault via strangulation and assault by battery for allegedly biting the victim on the face, according to his charge sheet. He faces a court-martial in November.
A hearing in the case was held Friday at Naval Base San Diego. At the hearing, the lawyer for the SEAL, said he was concerned his client, who identifies as “non-white,” cannot get a fair trial because of systemic racism in the military justice system, pointing out that there are no Black judges on the Navy bench.
Worth the Read.
Donald A. Dripps, Due Process Overbreadth? The Void for Vagueness Doctrine, Fundamental Rights, and the Brewing Storm over Undefined Consent in Sexual Assault Statutes. San Diego Legal Studies Paper No. 20-464 (2019). 73 OKLAHOMA L. REV. 119 (2019).
Appellate Advocacy Blog [https://lawprofessors.typepad.com/ appellate_ advocacy/] is part of my daily news feed. On 22 August 2020, Prof. Dysart posted an item by Stephanie R. Williams, Jamison v. McClendon: Lessons in Rhetoric and Persuasion.
One point the piece advocates is something I like—use a quote(s) as a hook to move forward into your presentation—and if possible close with the same or similar quote. The piece concludes that “Commentators’ opinions differ on whether the Jamison court should have found the underlying facts here outside the scope of qualified immunity.” She goes on to stress the “clear tone, repetition, common sense language, and strong use of authority make the order an especially nice example of persuasive writing.”
Prof. Dysart posts her own piece, “Using Non-Precedential Opinions: A Practical, Cautionary Guide.” She opines, “Unpublished, or “non-precedential,” judicial opinions are especially misunderstood creatures of appellate litigation. Yet they’re extremely common.”
Military Justice Editor