One to watch.

No. 26-0170/AR. U.S. v. Rene D. Alfaro. CCA 20220282. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
 
Whether the Army Court incorrectly held that Mil. R. Evid. 513 is absolute and a military judge must ignore exculpatory materials that he examines in camera.
 
Supplement brief       No reply brief
Appellant's brief       Appellee's brief       Appellant's reply brief

ACCA opinion.

AI is a useful tool--certainly way better than boolean searching. Having tried ChatGPT, Gemini, Claude, OpenCase, and Perplexity, Claude seems to be the better solution, not just on results, but cost. It's worth it to run any result through Grammarly's AI checker. However, if you don't check the cites, the quotes, and read the case . . .

It took 2 minutes to write this query in Claude Fable 5 High

"What is your answer to this question. "Whether the Army Court incorrectly held that Mil. R. Evid. 513 is absolute and a military judge must ignore exculpatory materials that he examines in camera." Army court decision uploaded and Appellant's Supplement here at https://www.armfor.uscourts.gov/briefs/2025Term/Alfaro260170Supplement.pdf.

This is what was pumped out about five minutes later.

Many years ago, I had a client kill himself at the DB after his Dubay hearing but before he got the good news--the Dubay judge found IAC and recommended a new trial. His case was abated — it was a mandatory review case, and briefs had been filed. His wife and children did get his death benefits (there was a time when SGLI was questionable, but that resolved because there's no "suicide" clause. There is history and law on this issue of death-on-appeal. But first, AFFCA has entered an order in United States v. Cox, No. ACM 26038 (A.F. Ct. Crim. App. Jun. 5, 2026) (Order) on the question--now what.

The Constitutionality of the Special Trial Counsel Under the Apogee of Judicial DeferenceAuthors. Josef Danczuk, 46 Pac L. Rev. 145 (2026).

Abstract

​Congress has undertaken some of its broadest reforms of military courts-martial in decades. The creation of the Special Trial Counsels (STCs) intentionally removes nearly all courts-martial powers from military commanders for “covered offenses,” some of the most serious prosecutions. Many commentators have expressed concern that this change untethers the courts-martial system from its historical anchor of discipline within the military—an anchor that the Supreme Court has used to grant exceptional deference to Congress for its legislation pursuant to the Make Rules Clause. However, the constitutionality of the STCs and the deference federal courts grant Congress in this realm should not be considered in jeopardy. STCs are akin to many prior Congressional exceptions to the command-centric disciplinary model. And under Ortiz v. United States, the Supreme Court’s most recent courts-martial case, STCs are neatly within the courts-martial’s supporting aims of discipline and justice.

Task & Purpose, 4 June 2026.

Miller has now filed a reply to the SG. Petitioner argues that the new argument, not made before CAAF is that the Sixth doesn't apply to a court-martial. This retrograde argument would take us back decades to a rougher form of justice. Goodness, what will they argue next, no Fifth, no Fourth, and no Eighth--ooh, bring back the plank, let's give new meaning to "swim call" while on cruise. 

MJRP? Nope.

Lawmaker Introduces Bill to Make Hazing a Standalone Offense Under Military Law.

The bill is named after Lance Corporal Harry Lew, Rep. Chu’s nephew, and Private Danny Chen, who both endured abuse from military superiors during their deployments to Afghanistan and died by suicide following their attacks. The bill would require the Joint Service Committee on Military Justice (JSC) to conduct an analysis and subsequent report to Congress on whether the Military Code of Justice should contain a standalone crime for hazing.

Compare H.R. 5060, text.

Porter is a guilty-plea mental-responsibility case. The opinion turns on three related questions: was the R.C.M. 706 inquiry sufficiently reliable for the plea, is there anything in the record that raised a substantial conflict with the plea, and did trial defense counsel have to do more after receiving the sanity-board report? NMCCA answered all three questions against the appellant and affirmed.

Porter can be read as a record-preservation case. Mental-health issues do not defeat a guilty plea merely because they exist. They defeat a plea when they create a substantial conflict with criminal responsibility, competence, voluntariness, or factual guilt. The military judge protected the plea by reopening the inquiry. Trial defense counsel protected themselves by requesting the 706 inquiry. And NMCCA affirmed because the record showed concern, investigation, and resolution—not unresolved doubt.

The opinion gives trial judges and appellate courts a straightforward rule of practical litigation: mental-health facts matter, but they do not automatically defeat a guilty plea. The defense must show more than anxiety, depression, unusual behavior, a post hoc disagreement with the examiner, or a theoretical mental-responsibility issue. The record must show a real conflict with the plea.

In United States v. Smith, CAAF granted review on whether AFCCA used the wrong standard when it referenced the older Arnold “light most favorable to the Government” language. CAAF noted that Inabinette supplies the proper test: appellate courts ask whether something in the record, as to law or fact, raises a substantial question about the guilty plea.

NMCCA did not lean on Arnold. It applied the Inabinette “substantial basis” standard directly. So, after Smith, the standard-of-review point likely strengthens Porter, not Porter’s appellate challenge. The question is not whether the record can be read favorably to the government. The question is whether the record contains a substantial conflict with the guilty plea.

Tuesday, May 12, 2026
Petitions for Grant of Review - Summary Dispositions
 
No. 26-0141/AF. U.S. v. Dietrich A. Smith. CCA 40437. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, we note that the lower court's opinion states: " '[W]hen a plea of guilty is attacked for the first time on appeal, the facts will be viewed in the light most favorable to the [G]overnment.' United States v. Arnold, 40 M.J. 744, 745 (A.F.C.M.R. 1994) (citation omitted)." However, this Court's opinion in United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008), articulates the proper standard for reviewing a military judge's decision to accept an accused's guilty plea: "[W]e apply the substantial basis test, looking at whether there is something in the record of trial, with regard to the factual basis or the law, that would raise a substantial question regarding the appellant's guilty plea." We note that the lower court both correctly articulated and applied the Inabinette standard. Therefore, even assuming arguendo that the lower court erred by obliquely referencing the Arnold language quoted above, we find no prejudice. Accordingly, it is ordered that said petition is granted on the following issue:
 
Whether the Air Force Court of Criminal Appeals abused its discretion by analyzing the providence of Appellant's plea using an erroneous "light most favorable to the Government" standard of law.

AFCCA decision.

AFCAA's decision is affirmed.

Lewis v. United States, 985 F.3d 1153 (9th Cir. 2021).

SUMMARY**
Habeas Corpus
The panel affirmed the district court's denial of a habeas corpus petition brought by Senior Airman James Lewis, United States Air Force, challenging his 2012 court-martial conviction for one count of aggravated sexual assault and two counts of wrongful sexual conduct.

In an unrelated case decided after the conviction became final, United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016), the Court of Appeals for the Armed Forces held unconstitutional a pattern jury instruction on Military Rule of Evidence ("M.R.E.") 413 under which jurors may consider evidence of any one charged sexual offense as showing the defendant's propensity to have committed any of the other charged sexual offenses.

In his federal habeas petition filed after Hills was decided, Lewis argued that the M.R.E. 413 propensity instruction given at his court-martial was in violation of the Fifth Amendment as interpreted in Hills, and that he had been denied effective assistance of counsel on direct appeal when his appellate counsel failed to challenge the constitutionality of such instruction.

The panel held that Hills—which held that the use of a charged sexual offenses to show propensity to commit other charged sexual offenses violated the presumption of innocence and right to have all findings made clearly beyond a reasonable doubt, as guaranteed by the Fifth Amendment—announced a new rule, but that the rule does not fall under either exception for non-retroactivity, as it is neither a substantive rule nor a watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding. The panel concluded that Hills therefore does not apply retroactively in Lewis's collateral attack on his court-martial conviction.