Air Force Court of Criminal Appeals
United States v. Brown. This is an Order, likely one of several to come, post-CAAF's decision to vacate the decision in Brubaker-Escobar.
United States v. Wermuth. Appellant pleaded guilty to possession and distribution of CP; for which the MJ sentenced him to three-years, a DD, and RIR. On appeal he raises four issues.
In evaluating the convening authority’s decision memorandum, I adhere to the approach I have used in prior cases including United States v. Aumont, No. ACM 39673, 2020 CCA LEXIS 416, at *29–37 (A.F. Ct. Crim. App. 20 Nov. 2020) (en banc) (unpub. op.) (Lewis, S.J., concurring in part and in the result), rev. granted, ___ M.J. ___, No. 21-0126, 2021 CAAF LEXIS 389 (C.A.A.F. 4 Mar. 2021), and United States v. Finco, No. ACM S32603, 2020 CCA LEXIS 246, at *13–16 (A.F. Ct. Crim. App. 27 Jul. 2020) (unpub. op.).
United States v. Washington. Appellant was "Dismissed" because members convicted him of abusive sexual contact, conduct unbecoming, and five instances of fraternization (but acquitted of three other Article 133 specifications). Appellant raises three errors.
Senior Judge POSCH delivered the opinion of the court. Judge RICHARDSON filed a separate opinion concurring in part, dissenting in part, and dissenting in the result in part. Judge MEGINLEY filed a separate opinion concurring in part, dissenting in part, and dissenting in the result in part.
A useful discussion of fraternization and a reminder to the government. I'll let you read the other 72 pages of opinions.
The fact that officers are held to a higher standard of conduct does not diminish the Prosecution’s burden. United States v. Appel, 31 M.J. 314, 320 (C.M.A. 1990) (“[A] custom is not a subject for judicial notice . . . . With respect to the Air Force custom against fraternization . . . no one can say . . . that the extent of this custom is so clear as to dispense with the requirement of proof.”).
United States v. Bailey. GP to indecent liberties with a child abusive sexual contact with a child, sexual abuse of a child, rape of a child, and obstruction of justice; for which the MJ sentenced him to 25-years, DD, TF, RIR, and a reprimand. There are two issues on appeal.
The court did find that it was error to allow the TC to read the VIS. It was not prejudicial for several reasons including "minimal additional value in light of the already admitted evidence of Appellant’s serious crimes." As to the content of the VIS, the court recognized that the MJ orally stated some limitations on what or how he would consider the statement .
Army Court of Criminal Appeals
United States v. .Tanski-Jett. Appellant pleaded guilty to attempted sexual assault of a child and attempted sexual abuse of a child, for which he was sentenced to two years, a DD, TF, and RIR. The court had to resolve an ambiguity between the action and an agreement to waive forfeitures post-trial.
Worth the read
Junk science presented in criminal trials has caused countless wrongful convictions. This has been known since the 1990s, when DNA retesting in closed cases revealed that much of the forensic evidence used to secure convictions was hugely flawed. Such revelations have triggered considerable research and scholarship aimed at improving forensic science methods and preventing the use of unreliable forensic evidence in criminal cases. Despite these efforts, the forensic science system remains insulated from scrutiny and junk science persists in trials.
** SSRN is an excellent resource along with Google Scholar for finding free articles about relevant legal issues.
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