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TODAY at 2:30 p.m. ET, Michel Paradis, senior attorney in the U.S. Department of Defense and lecturer at Columbia Law School, will join Scott Anderson, Lawfare senior editor, to take questions from the Lawfare community on his recent article, “Congress Demands Accountability for Service Members.” Sen. Kirsten Gillibrand recently introduced the “Military Justice Improvement and Increasing Prevention Act,” which aims to change the way the military handles sexual assault cases by removing the chain of command from the court martial process and is expected to be signed into law. How would the bill reform the military justice system? What issues should lawmakers consider as they finalize the legislation? You can register here "Save my Spot."
Missouri Court of Appeals--Western District
In Missouri v. Gilbert, the court says a jury verdict cannot be impeached when there is evidence the jurors held the accused's silence against him.
The court emphazised the limited exceptions in their state law making it only possible to have testimony about juror misconduct that happened outside the jury room or testimony about jury misconduct that occurred during deliberations where a juror makes statements evincing ethnic or religious bias or prejudice during deliberations.
Gilbert was trying to create a new court made exception for "improper consideration of a defendant's failure to testify in reaching its verdict." The Missouri court said it would not create this new exception.
In doing so, they referenced Pena-Rodriguez where the U.S. Supreme Court "warned that creating further exceptions to the general rule of jury impeachment could create havoc: “[t]o attempt to rid the jury of every irregularity of this sort would be to expose it to unrelenting scrutiny. It is not at all clear ... that the jury system would survive such efforts to perfect it.” Pena-Rodriguez at 868.
Mil. R. Evid. 606 is our guide barring impeachment, with three exceptions.
(A) extraneous prejudicial information was improperly brought to the members’ attention;
See, e.g., 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) (the AFCCA found insufficient evidence to believe racial bias or animus influenced the trial members panel decision. Another case to consider is United States v. Leal, __ M.J. ___ (C.G. Ct. Crim. App. May 3, 2021), petition pending CAAF. In Leal, the issue became whether to senior member, an O-6, had influenced the enlisted members to vote for guilt. The CGCCA found insufficient evidence to overturn the conviction because of the senior member's alleged influence. In United States v. Schloff, , statements by the two senior (O-6) members lead to a new trial: "politically, the United States Army could not afford to seem weak on sexual harassment and assault[,] or "based on the political climate, the Army could not seem weak or soft in dealing with sexual harassment or assault."
Note that in Iowa v. Spates, the court said that "appellate review had to apply an objective not subjective standard[,]" when reviewing jury impeachment issues.
[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.
Army Court of Criminal Appeals
United States v. Alton. USMA Cadet Alton was convicted of indecent recording and indecent broadcasting. Appellant’s brief tells us that he was sentenced to a DD, five months, and a reduction.
when he was tried and convicted at a general court-martial for indecent broadcasting and indecent recording. Appellant contends that a speech by the convening authority-the West Point Superintendent-during the pendency of appellant's court-martial either itself constituted apparent unlawful command influence, or was evidence of such influence upon the convening authority by Army and Congressional leaders, or both. As a result, appellant requests that we set aside his findings and sentence. Because this issue warrants discussion but no relief, we affirm.
(Note, one of the MJ’s rulings was to reopen the 32 because of a Government failure to disclose “certain evidence.”)
We hope to post a review of United States v. Proctor and Alton shortly. Note also United States v. Irvin, supra, alleged UCI in TC's sentencing argument.
Air Force Court of Criminal Appeals
United States v. Daniels. Appellant was sentenced to 30 days, a BCD+ because he once conspired to violate a lawful general regulation, once wrongfully solicitated a false official statement, once violated a general regulation, once made a false official statement; and wrongfully used marijuana a few times. (MJA/GP.) Remanded to the field to correct post-trial errors.
Navy-Marine Corps Court of Criminal Appeals
United States v. Sutton, __ M.J. ___ (N-M Ct. Crim. App. 2021). A short published opinion about post-trial errors.
A military judge sentenced Appellant to 12 months and a BCD+; for what remains unpublished. This is a post-trial error case in which the court finds no material error but itself corrects the Entry of Judgment.
[W]e note that the Entry of Judgment is inaccurate, as Block 11 (Pleas and findings for each charge and specification referred to trial, accounting for any modifications by reason of any post-trial action by the convening authority or any post-trial ruling, order, or other determination made by the military judge) inaccurately reflects the findings for Charge II and Additional Charge I. Moreover, neither the Entry of Judgment nor the Statement of Trial Results account for Charge I and its specifications or for Specification 1 of Charge III, all of which were referred to trial but dismissed by the convening authority prior to arraignment.
United States v. Irvin. In this GP (members for sentencing) case, Appellant was sentenced to four years, a DD, and forfeitures because he had used oxycontin and committed an aggravated assault.
[Appellant] asserts three assignments of error: (1) the trial counsel injected unlawful command influence into the proceeding when he told the members during his sentencing argument that their decision would “echo and reverberate throughout [T]raining [C]ommand;” (2) Appellant’s sentence is inappropriately severe; and (3) the military judge abused his discretion by crediting Appellant with only 212 days of pretrial confinement credit despite ruling that Appellant had been confined for 577 days for the offenses. We find the sentence inappropriately severe and take corrective action in our decretal paragraph.
Worth the Read
COMMENT: The Compatibility of Military and Civil Legal Values: Mens Rea—A Case in Point. 28 MIL. L. REV. April 1965.
Two fundamental questions have bedeviled military law since the last World War.Is it a layman’s law or a lawyer’s law ; that is, should it be administered by laymen or lawyers? Are military and civil legal values compatible?
Alexa Mills, Albert King Is Not Forgotten. Washington Post, 28 May 2021.
Albert King’s body was still warm when his killer’s trial began at 3:02 p.m. on March 24, 1941. [And ended about thirteen hours after King had died with an acquittal.] Sgt. Robert Lummus faced the charge of manslaughter — of willfully, feloniously and unlawfully killing King. Outside the court-martial room at Fort Benning, Ga., under overcast skies, some 50,000 soldiers were training for the possibility that the United States would enter World War II.
Former Army judge advocate (and military law historian) Fred Borch is consulted and referenced in the article.
A later LODI first found King ILOD but was ordered to change its finding—which it did. A Assistant to the Army TJAG recommended approval of the then modified not in line of duty finding and called the CG’s reconsideration order to be possibly “inaptly worded.”
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