Dateline: 18 December 2020; a summary of the week.
On 15 December 1791
“Following ratification by the state of Virginia, the first 10 amendments to the U.S. Constitution, known collectively as the Bill of Rights, become the law of the land.”
COURT OF APPEALS OF IOWA
In State v. Spates, (decided 21 October 2020), the Iowa court of appeals had before it a challenge that members of the jury were racially biased. The court applied Pena-Rodriguez and in the process found that the standard of any review had to be objective not subjective and so they remanded the case to the district to apply that standard.
[W]hether to receive juror testimony and whether to grant a new trial—should be based on objective circumstances, e.g., what was said; how and when it was said; what was said and done before and after; whether and how the statements relate to evidence in the case; whether and how the statements relate to the issues the jury will decide when reaching a verdict. Conversely, neither determination should depend on the jurors’ subjective evaluations of their own motives—or the motives of other jurors—in voting to convict.
“Yes, I made racial attacks on the accused during deliberations, but that didn’t affect my decision.”—that’s a subjective viewpoint (which we hear all the time).
“Yes, I made racial attacks on the accused during deliberations, and a reasonable member of the public would be left to wonder about that juror’s participation.”—that would be objective?
Colorado, like the military and other states, has a rule which generally prohibits a juror from testifying as to statements made during deliberations in a proceeding inquiring into the validity of the verdict. See Mil. R. Evid. 606(b). In Pena-Rodriguez v. Colorado, the U.S. Supreme Court held that the prohibition gives way where a juror makes a clear statement indicating that he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.
At least one military appellant has sought relief citing to Pena-Rodriguez:
In Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 869, 197 L. Ed. 2d 107 (2017), the Court held that "where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no impeachment rule give way in order to permit the trial court to consider the evidence of the juror's statement and any resulting denial of the jury trial guarantee." We perceive no reason why this concern would not apply equally to trial by court-martial. However, in this case, there is no trace of "racial stereotypes or animus," much less a "clear statement." Therefore, we find no abuse of discretion in light of Pena-Rodriguez, although military judges should be cognizant of this new constitutional exception to Mil. R. Evid. 606(b).
United States v. Robertson, 77 M.J. 518, 526 (A. F. Ct. Crim. App. 2017) aff’d in part rev’d in part on other grounds, 77 M.J. 365 (C.A.A.F. 2020).
COURT OFAPPEALS-TENNESSEE (Nashville)
In these 28 U.S.C. § 2241 proceedings, Joseph M. Ward III petitioned in the Eastern District of Virginia for habeas corpus relief from his military court convictions and sentence claiming violations of his Fifth Amendment right to due process and Sixth Amendment right to the effective assistance of counsel. The district court dismissed Ward’s § 2241 petition under Federal Rule of Civil Procedure 12(b)(1) for lack of jurisdiction over the due process claim and under Rule 12(b)(6) for failure to state a plausible ineffective assistance claim. See Ward v. United States, No. 1:18-cv-00569 (E.D. Va. Mar. 27, 2019), ECF No. 10 (the “Dismissal Order”). As explained below, we affirm the dismissal of Ward’s § 2241 petition but recognize that Rule 12(b)(6) is the proper basis for the dismissal of both claims.
Appellant raises four assignments of error on appeal: (1) whether the military judge abused his discretion in denying testimony from a defense witness, JG, in presentencing; (2) whether the military judge erred by deducting 37 days of confinement credit for Appellant’s illegal pretrial punishment prior to announcement of sentence; (3) whether the report of result of trial (RRT), action of the convening authority, and court-martial order failed to properly reflect Appellant’s pretrial confinement credit; and (4) whether the staff judge advocate’s recommendation (SJAR) failed to provide accurate and proper advice to the convening authority.
On appeal, Appellant raises three assignments of error: (1) whether Appellant’s plea as to Specification 4 of the Charge was improvident based on the Care inquiry;4 (2) whether Appellant’s trial defense counsel were ineffective in presentencing; and (3) whether Appellant’s plea was improvident based on an alleged lack of mental responsibility or, in the alternative, because his diminished mental state made him susceptible to undue pressure from his defense counsel.5 Finding no error materially prejudicial to Appellant, we affirm the findings and sentence.
As an initial matter, we note Appellant’s general objections to the declarations of his counsel as referenced in his reply brief.11 Specifically, we are not persuaded by Appellant “generally object[ing] to both declarations, to the extent the responses exceed the [c]ourt’s order, specifically for releasing confidential as well as secret information known by defense counsel relating to the representation that was unnecessary to rebut the claims of ineffective assistance of counsel.” Additionally, we are not persuaded by Appellant “generally object[ing] to both declarations, to the extent the responses exceed the [c]ourt’s order, specifically for releasing information privileged under [Mil. R. Evid.] 302.” After reviewing trial defense counsel’s declarations, we find they were sufficiently detailed and necessary to address each issue raised by Appellant.
First the court specified two issues.
IN LIGHT OF RULE FOR COURTS-MARTIAL (R.C.M.) 705(C)(1)(B), DID THE MILITARY JUDGE ERR WHEN SHE:
a. FAILED TO ADVISE APPELLANT THAT HIS AGREEMENT TO “WAIVE ALL WAIVABLE MOTIONS” COULD NOT BE ENFORCED TO PREVENT HIM FROM RAISING AN R.C.M. 707 SPEEDY TRIAL MOTION;
b. IMPLIED THAT “IN ORDER TO GET THE BENEFIT” OF HIS PRETRIAL AGREEMENT, APPELLANT HAD TO “GIVE UP MAKING THESE MOTIONS,” WHICH INCLUDED AN R.C.M. 707 SPEEDY TRIAL MOTION; AND
c. ADVISED APPELLANT THAT HIS FAILURE TO “WAIVE ALL WAIVABLE MOTIONS,” IMPLICITLY INCLUDING HIS R.C.M. 707 SPEEDY TRIAL MOTION, WOULD RESULT IN THE CANCELATION OF HIS PRETRIAL AGREEMENT? IF SO, IS APPELLANT ENTITLED TO RELIEF?
DID APPELLANT RECEIVE INEFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL DEFENSE COUNSEL FAILED TO SEEK RELIEF FOR A POTENTIAL VIOLATION OF APPELLANT’S RIGHT TO SPEEDY TRIAL UNDER RULE FOR COURTS-MARTIAL 707? IF SO, IS APPELLANT ENTITLED TO RELIEF?
Second, the court decided not to decide the issues but remanded the case for corrections in the post-trial processing. The processing issue is the ongoing problem of a CA failing to take required actions.
Appellant raises three issues through counsel: that (1) the military judge erred in denying a defense challenge for cause of one of the members; (2) the military judge abused his discretion in denying Defense-requested sentencing instructions; and (3) the record is not substantially verbatim due to the military judge deciding contested issues during Rule for Courts-Martial (R.C.M.) 802 conferences. The court added a Moreno issue. But the find no errors and affirmed the findings and sentence.
IN THE NEWS—PENDING APPELLATE CASES.
o Lance Cpl. Samuel London, who served as a United States Marine Corps reservist, is facing a multitude of charges brought by the Naval Criminal Investigative Service and U.S. Marine Corps concerning the death of a 19-year-old Hopedale High School graduate, Daniel J. Hollis on Sept. 28.
o “The Marine Corps can confirm Lance Corporal London has been charged with Murder with intent to kill or inflict great bodily harm,” Major [RH], spokesman for Marine Corps Reserves told MassLive. Hollenbeck pointed out that at this time the charges are merely an accusation and the accused is innocent until proven guilty.
o Apparently a grand jury declined to indict in this case. The DA reports, ““The investigation that preceded the Grand Jury’s vote was incredibly thorough and painstakingly detailed[.]"
WORTH THE READ.
*Brought to you as a product of the MilitaryLawNewsSpeakBureau.
 “Brady-plus” is my shorthand reference to Brady and its progeny in both federal and military case law and avoids a string cite.