UP PERISCOPE

UP PERISCOPE
 
Dateline: 13 November 2020 (as of 1000); a summary of the week’s events.
 
SUPREME COURT

• Petition to watch--Bess v. United States.

 
United States v. Bess, 80 M.J. 1 (C.A.A.F. 2020).
United States v. Bess, 74 M.J. 70 (C.A.A.F. 2016).
United States v. Bess, No. 201300311, 2018 CCA LEXIS 476 (N-M. Ct. Crim. App. Oct. 4, 2018) (unpub.).
 
The QP:  (1) Whether 10 U.S.C. § 825, which allows a military commander to hand select members to sit on a general court-martial panel, as applied in Pedro Bess’ case — in which an all-white panel convicted a Black defendant of sexual misconduct against a white woman — violates the Fifth Amendment; and (2) whether the lower court erred in declining to remand Bess' case for additional factfinding.
 ​

Fed. Dist. D.C.

• Larrabee v. Spencer. The petitioner seeks declaratory and injunctive relief and “challenges the constitutionality of the provisions of Article 2(a) of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 802(a), that authorize the court-martial of military retirees, even for offenses they commit after retirement.” Complaint at 1.
  • Oral argument was heard on 6 November 2020 before Judge Leon.
  • Plaintiff Memorandum in opposition to Defendant’s motion to dismiss on the pleadings.

 
CAAF

• United States v. White.

 
The Government appealed the military judge’s ruling pursuant to Article 62(a)(1)(B), UCMJ, 10 U.S.C. § 862(a)(1)(B) (2018), which authorizes an interlocutory appeal by the Government when a ruling excludes evidence that would provide substantial proof of material facts. The United States Navy-Marine Corps Court of Criminal Appeals (NMCCA) agreed with the military judge that the CASS was issued without probable cause but concluded that the good faith exception in M.R.E. 311(c)(3) applied and that this exception prevented exclusion of the evidence. United States v. White, No. NMCCA, 201900221, 2020 CCA LEXIS 68, at *2, 2020 WL 1174477, at *1 (N-M. Ct. Crim. App. Mar. 11, 2020). We granted Appellant’s petition for review under Article 67(a)(3), UCMJ, 10 U.S.C. § 867(a)(3) (2018). We now reverse the decision of the NMCCA and affirm the military judge’s ruling suppressing the evidence.

• Tuesday, November 3, 2020; Certificate for Review Filed.
  • No. 21-0042/AR. U.S. v. Danny L. McPherson. CCA 20180214. Notice is given that a certificate for review of the decision of the United States Army Court of Criminal Appeals was filed under Rule 22 on this date on the following issue:
    • DID THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS ERR WHEN IT DISMISSED THE SPECIFICATIONS IN CHARGE I ON THE GROUNDS THAT THE STATUTE OF LIMITATIONS HAD EXPIRED?

 

• Friday, November 6, 2020; Appeal - Summary Disposition.
  • No. 20-0294/AF. U.S. v. Ryan M. Vanvalkenburgh. CCA 39571. On further consideration of the granted issues and the briefs of the parties, we conclude that Appellant forfeited his challenge to the constitutionality of Rule for Courts-Martial (R.C.M.) 912(f)(4) and that Appellant has not established plain error. We have determined that Appellant did not waive his constitutional challenge to R.C.M. 912(f)(4) by intentionally relinquishing a known right. We do not consider the possibility that the constitutional challenge was waived by operation of law under R.C.M. 905(e) or any other R.C.M. provision because the Government has not made this argument. Accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is hereby affirmed.

 
ACCA
 
AFCCA

• United States v. Crump. After a military judge alone trial,

 
Appellant raised 12 issues5 for our consideration: (1) whether the evidence is legally and factually sufficient;
 
(2) whether the military judge erred by not recusing himself; [this issue arose after a busted providency to one of the charges.]
 
(3) whether the military judge erred by admitting testimony offered pursuant to Mil. R. Evid. 413;

(4) whether the military judge erred by failing to compel the production of evidence and witnesses from the investigation of the Mil. R. Evid. 413 witness’s claims;

(5) whether the military judge erred in excluding evidence under Mil. R. Evid. 412;
 
(6) whether Appellant was denied effective assistance of counsel under the Sixth Amendment as alleged in three deficiencies in the performance of his trial defense counsel; [(1) failed to provide evidence to support Appellant’s mistake of fact as to consent defense to AB EA’s allegations; (2) failed to rebut testimony of a government witness, A1C BD, to whom Appellant purportedly confessed to raping AB EA; and (3) failed to adequately prepare a sentencing witness, AJ—Appellant’s mother—for her testimony. Apparently the concern was that the mother would “open the door” to rebuttal—which she did [something of which impliedly impeached the verdict]. The testimony followed after an earlier “outburst from the gallery.”]
 
(7) whether Appellant was unlawfully deprived of a panel of his peers in violation of the Sixth Amendment and Article 25, UCMJ, 10 U.S.C. § 825; (8) whether trial defense counsel were ineffective on additional grounds by declining to search Appellant’s phone or review the Snapchat messages he exchanged with one victim; (9) whether the military judge erred by considering an unsworn victim impact statement under R.C.M. 1001A; (10) whether the mandatory dishonorable discharge is unconstitutional; (11) whether the sentence to ten years of confinement was unduly severe; and (12) whether the cumulative error doctrine requires relief. In addition, although not raised by Appellant, we consider whether he is entitled to relief for facially unreasonable appellate delay. (Issues 7-11 are Grosty.)
 
Regarding issue (10), we find the assignment of error to be without merit for the reasons we announced in three prior cases[.]

In a 69-page opinion and “On the remaining issues, we find no error that materially prejudiced Appellant’s substantial rights. As assertions of error without merit are not sufficient to invoke the doctrine of cumulative error, we find no relief warranted for issue (12).”

• United States v. Sundstrum. The court denied a Grosty issue that the sentence was inappropriately severe.

 

• United States v. Frantz.

 
Appellant raises nine issues on appeal: (1) whether the evidence is legally and factually sufficient to support his convictions; (2) whether the finding of guilty with regard to Specification 3 of the Charge is fatally ambiguous; (3) whether the Government violated Appellant’s right to equal access to evidence; (4) whether the military judge abandoned his impartial judicial role and erroneously failed to disqualify himself; (5) whether Appellant’s sentence is inappropriately severe; (6) whether the Government’s failure to defer and waive automatic forfeitures in accordance with the convening authority’s direction warrants relief; (7) whether the Naval Consolidated Brig Miramar (Miramar Brig) policy of preventing Appellant from having contact with his minor son is unconstitutional or violates Article 55, UCMJ, 10 U.S.C. § 855; (8) whether the military judge abused his discretion in declining to admit a defense exhibit; and (9) whether the delay in procuring prescription eyeglasses for Appellant during his confinement constituted cruel and unusual punishment. In addition, although not raised by Appellant, we consider two further issues: whether the convening authority’s failure to state his reasons for denying Appellant’s request to defer his reduction in grade warrants relief; and whether Appellant is entitled to relief for facially unreasonable appellate delay. We affirm the findings, . . . and ultimately the sentence.
 
Note: pay attention to issue #3—it’s a discovery issue that is actually not uncommon.
 
CGCCA
 
NMCCA
 
In the News—pending appellate cases.

• Navy Times reports an E-9 at Walter Reed National Medical Center (Bethesda) is pending court-martial for several offenses in violation of Article 120, UCMJ.
• Daily Mail (UK) now reports that.

 
The Air Force has charged a two-star Major General with sexual assault in what could be the first court-martial of a general officer in its 73-year history. Major General WC is accused of forcibly kissing and touching a civilian woman in August 2018. The father-of-three faces a preliminary hearing on January 27, where a senior military judge could decide to send the case to a court-martial.
 
Worth the Read.

• Doug Stout, Veterans column: Newark’s Scott found guilty of mutiny. Newark Advocate.

 

• United States v. Scott is due to be argued before the Court of Appeals for the Armed Forces pm 17 November 2020. The issue is whether Appellant’s trial defense counsel were ineffective by failing to introduce substantial positive character evidence and combat service on sentencing.
• In United States v. Demerse, No. 900529R, 1992 CMR LEXIS 511 (N.M.C.M.R. Apr. 20, 1992), the Navy-Marine Corps Court of Military Review summarily affirmed the findings and sentence. The court did not address Issue IV which was,

 
THE SENTENCE INCLUDING FIVE YEARS CONFINEMENT IS INAPPROPRIATELY SEVERE PUNISHMENT FOR APPELLANT'S OFFENSES GIVEN APPELLANT'S HISTORY OF SERVICE TO THE NAVY.

• The Court of Military Appeals granted on the following issues,

 
WHETHER THE NAVY-MARINE CORPS COURT OF MILITARY REVIEW HAS DECIDED APPELLANT'S CASE IN CONFLICT WITH PRECEDENT FROM THIS HONORABLE COURT REGARDING THE FAILURE OF TRIAL DEFENSE COUNSEL TO OFFER APPELLANT'S PERSONAL DECORATIONS EITHER AT TRIAL, OR TO COMMENT UPON THEIR OMISSION FROM THE STAFF JUDGE ADVOCATE'S RECOMMENDATION AND CONVENING AUTHORITY'S ACTION, THEREBY DENYING APPELLANT HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
 
WHETHER THE STAFF JUDGE ADVOCATE COMMITTED PLAIN ERROR BY OMITTING FROM HIS RECOMMENDATION TO THE CONVENING AUTHORITY AWARDS AND DECORATIONS APPELLANT RECEIVED IN VIETNAM.
 
            United States v. DeMerse, 37 M.J. 488, 489 (C.A.A.F. 1993).

• “[D]efense counsel called one witness and introduced seven exhibits. Defense counsel did not, however, introduce any evidence of appellant's awards and decorations. During closing argument on sentencing, defense counsel stated that appellant "has spent nearly 18 years in the Navy. Those years were honorable service, much of it at sea." Defense counsel did not even then enumerate appellant's awards and decorations for the military judge.”

 

• “This was a bench trial where the military judge is presumed to know our decision in United States v. Rowe, [18 C.M.R. 54 (C.M.A. 1968)] and its concern for evidence of Vietnam service.” 37 M.J. at 490. (Note, Captain Scott’s combat service was Iraq and Afghanistan.)

 

• “To the extent we have such discretion, we exercise it in appellant's case because of the traditional importance of awards and decorations to the integrity of the military punishment process.” 37 M.J. at 492.

 

• “Moreover, we reject the Government's position that the omitted awards [reveal nothing of appellant's character or would somehow aggravate his sentence in view of his current failings. On the contrary, appellate defense counsel argues:

 

• Service in Vietnam carries special distinction. Such service is even more noteworthy today, some 20 years after the cessation of hostilities in Vietnam, as it is becoming increasingly rare to find servicemembers on active duty with Vietnam service. Awards received as a result of Vietnam service are likewise viewed as important statements about a soldier's or sailor's character.

 

• We wholeheartedly agree with this argument and reaffirm our prior decision in United States v. Rowe, supra, that Vietnam service is not to be forgotten. 37 M.J. at 492-93.

 

• It is to be hoped that similar agreement and reaffirmation arises in Scott.

 

• All of which is why I started with the case of a Civil War officer convicted of serious offenses for which he received a light sentence; likely on the basis of “the high regard entertained by the Court for the gallantry and soldierly bearing generally of Capt. Scott and it is deeply to be regretted that so brave an officer[.]”

 

• Frances Chapman (Lakehead University - Faculty of Law) has posted an abstract of A Recipe for Wrongful Confessions: A Case Study Examining the ‘Reid Technique’ and the Interrogation of Indigenous Suspects ((2020) Michigan State University International Law Review 28:3 369) on SSRN. Here is the abstract:

 

• The Innocence Project in the United States has produced research that more than 1 out of 4 persons who have been wrongfully convicted (as confirmed by DNA evidence) were convicted because of a false confession. There are similar estimates in Canada that approximately 20% of all DNA based exoneration involve false confessions. This paper seeks to explore the potentially damaging effects of police interrogation techniques when used on Indigenous suspects in the criminal law context. Very little has been published on this important topic, but with the over-representation of Indigenous offenders it is a subject that needs further study. The cultural factors that may cause an Indigenous accused to “confess” to something they did not do are very much linked to language and communication styles. Suspects who are vulnerable as a result of their background need special accommodations in interrogation, but this understanding has been largely absent from Canadian jurisprudence as there are very few references in the case-law to these considerations.
• This article will also discuss research from Australia which focuses on the dangers of interrogation of Indigenous subjects[.]

Appellate Advocacy.
 
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Phil Cave

MJ Editor