To be “clearly erroneous” a finding of fact “must be more than just maybe or probably wrong; it must strike us with the force of a five-week-old unrefrigerated dead fish.”
United States v. Rivera, __ M.J. ___ (N-M. Ct. Crim. App. 2022) citing United States v. Cooper, 80 M.J. 664, 672 n.41 (N-M. Ct. Crim. App. 2020).
To quote brother Pat McLain, that is all.
United States v. Edwards, presents an interesting resolution of a sentence reassessment.
After this court affirmed the findings and sentence, United States v. Edwards, No. ACM 39696, 2021 CCA LEXIS 106 (A.F. Ct. Crim. App. 10 Mar. 2021) (unpub. op), the United States Court of Appeals for the Armed Forces (CAAF) granted Appellant’s petition for review of the following issue:
You may recollect our postings and what you have read about the Pro Publica litigation over access to court filings in Mays. We have mentioned that the U.K. has laws about what can and cannot be published in the media about a case and about name-suppression of the accused.
Well, it appears the Irish have some similar as this news article reports.
Connor Gallagher, Military judge hears arguments over media's right to report on court martial. Irish Times, December 8, 2022. ("The matter relates to the case of an officer convicted of sexually assaulting a female soldier.")
The matter was raised during legal argument at a General Court Martial hearing held in McKee Barracks on Thursday. At issue was the right of the media to have a right of audience before a court martial and to challenge the imposition of reporting restrictions on proceedings.
In re AL is a discovery case based on a complaining witness's Writ Petition.
The defense discovery request asked for
“[a]ny relevant personnel, medical, and mental health records of any complaining witness . . . to include records in the possession of the Family Advocacy Program (FAP) . . . .”
Trial Counsel got
"575 pages of medical records, including 42 pages of FAP records."
Trial Counsel thought some information was relevant.
After litigation, and over the SVC's objection the military judge ordered production to the defense without redaction or reviewing in camera. Essentially,
"As noted above, the military judge’s order did not address Mil. R. Evid. 513 at all. Therefore, we cannot be certain how the military judge analyzed the application of the rule."
An interesting new grant.
No. 22-0284/AR. U.S. v. Brian C. Docilet. CCA 20200358. 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 MILITARY JUDGE ERRED IN DENYING DEFENSE'S REQUEST TO POLL THE PANEL TO VERIFY A UNANIMOUS VERDICT.
No briefs will be filed under Rule 25.
Here is a link to the current NDAA proposals affecting military justice.
Random selection of court members.
Remaining prosecutorial for covered offenses removed from CA.
Expand the number of covered offenses.
A review of Titling actions.
On December 1, 2022, amendments to the various fede rules took effect. No worries. There are no changes to the rules of evidence that would implicate Mil. R. Evid. 1102.
The manner in which the rules for federal courts are adopted is of interest for the robustness and transparency.
The federal rulemaking process is a detailed process that involves a minimum of seven stages of formal comment and review. . . .
You can read more about the process at Overview for the Bench, Bar, and Public. The transparency in rule making is shown there.
In these polarized times, one notices more regular invocations of military courts by those on the partisan fringes. In their imaginations, military justice functions as a kind of wrecking ball past the stasis and hurdles of civilian criminal justice, resulting in swift and severe punishment of high political enemies. This image may be accurate with respect to Myanmar or some other countries, but as we all know it is false here. Still, many people think that it is right, and we should be worried about that.
Stars & Stripes "announces" the nominations for Senior Trial Counsel by Service.
SCOTUSblog notes several pending petitions of interest, perhaps even to the MJ community.
They begin comment on Deveraux v. Montana with
The Supreme Court has ruled that the seating of a biased juror can violate the constitutional right to an impartial jury. It has stopped short, however, of holding that the violation is so stark as to constitute a “structural error” requiring automatic reversal under the Sixth Amendment, and state courts are divided over whether it rises to that level. This week, we highlight cert petitions that ask the court to consider, among other things, whether the seating of a biased juror is the type of error that always requires a new trial.
The actual issue presented is
Whether a trial court commits structural error, requiring automatic reversal under the Sixth Amendment, when it seats a biased juror after erroneously denying a for-cause challenge to that juror.
In Moore v. Texas, from the petition:
A Texas statute criminalizes sending repeated electronic communications with the intent and likely result of “harassing, annoying, alarming, abusing, tormenting, embarrassing or offending” another. Because the law would be violated by the repeated sending of communications that contain no expressive content, like a blank email, the Texas Court of Criminal Appeals concluded that it “proscribes non-speech conduct” and does not implicate the First Amendment, even though the law would in most cases be violated by the repeated sending of expressive communications. The court thus rejected Petitioners’ facial overbreadth challenges to the criminal statute. The questions presented are:
1. Is a law that criminalizes expressive speech immunized from any First Amendment scrutiny if it also criminalizes non-expressive conduct?
2. Is a law that punishes the repeated sending of electronic communications with intent and likely result to “harass, annoy, alarm, abuse, torment, embarrass, or offend” another unconstitutionally overbroad?
The court has relisted Counterman v. Colorado. Here is SCOTUSblog's (edited) comment.
It is well known that the First Amendment does not protect speech that constitutes a “true threat.” But the court has never said all that clearly what a “true threat” is. The closest the court has come is Virginia v. Black, where the court wrote that true threats “encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence.” The court granted review in Elonis v. United States to resolve an acknowledged circuit split “on the question whether proof of a true threat requires proof of a subjective intent to threaten,” or whether it is enough that an “objectively reasonable person would view [the] message as [a] serious expression of intent to harm.”
Disclaimer: Posts are the authors' personal views and do not reflect the position of any organization or government agency.
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