Dateline: 13 November 2020 (as of 1000); a summary of the week’s events.
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.
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.
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).”
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.
In the News—pending appellate cases.
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.
THE SENTENCE INCLUDING FIVE YEARS CONFINEMENT IS INAPPROPRIATELY SEVERE PUNISHMENT FOR APPELLANT'S OFFENSES GIVEN APPELLANT'S HISTORY OF SERVICE TO THE NAVY.
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).
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