United States v. ShelbyIn its third case of the season, CAAF addresses the application of the cumulative error doctrine to pretrial proceedings. Pretrial, the military judge dismissed a charge with prejudice pursuant to the cumulative error doctrine. The Government then filed an interlocutory appeal. On appeal, the United States NavyMarine Corps Court of Criminal Appeals vacated the military judge’s dismissal. We granted review to determine whether the cumulative error doctrine applied in the pretrial context. We hold that the military judge abused his discretion because the cumulative error doctrine does not apply pretrial. As the United States Navy-Marine Corps Court of Criminal Appeals reached the same conclusion, we affirm the judgment of the lower court. The cumulative error doctrine is an equitable remedy on appeal for, as many practitioners are aware, several errors that, while maybe individually sustainable, combined to deny an Accused of his constitutional right to a fair trial. "The cumulative error doctrine is a prejudice test that looks retrospectively at a court-martial’s execution and results to assess the cumulative effect of all plain errors and preserved errors." Slip op. at 4. Procedural History The Convening Authority referred charges against the Appellant for false official statement, abusive sexual contact, indecent exposure, assault consummated by battery, and indecent conduct. He requested individual military defense counsel (IMC). (An Accused may request any military counsel, regardless of service, if he or she is reasonably available.) Prior to trial, the military judge determined trial counsel misled the Staff Judge Advocate (a topic most certainly for another day), resulting in Unlawful Command Influence, and dismissed a charge, without prejudice, disqualified the Convening Authority, and the trial counsel. The subsequent Convening Authority referred the same charges to court-martial. The Appellant again requested IMC, who was ultimately deemed not reasonably available. Appellant filed a motion to compel IMC, and was denied. The military judge ruled the denial improper. The military judge ultimately dismissed one charge, WITH PREJUDICE, based on the cumulative error doctrine and the totality of the circumstances. The Government appealed. The Navy-Marine Corps Court of Criminal Appeals reversed. CAAF granted review to determine whether the military judge erred in dismissing Charge II pursuant to the cumulative error doctrine. Summarized Analysis CAAF held that the cumulative error doctrine DOES NOT apply to pretrial proceedings. Nevertheless, the Court continued to analyze why the military judge erred in applying a judicial doctrine he apparently had no jurisdiction to apply. While the Court’s analysis may have use in persuasive argument, it is pure dicta. Judge Sparks writing for the court suggests several reasons the MJ seemed to have in dismissing with prejudice. [T]he military judge appears to have dismissed Charge II with prejudice based, in part, on his dissatisfaction with the UCI remedy at the first court-martial. Although the military judge had the authority to consider the totality of the circumstances in selecting a remedy to preserve the accused’s right to a fair trial, his decision to dismiss with prejudice was an abuse of discretion for two reasons. First, the military judge did not identify how the taint of the previous court-martial carried into the present court-martial, particularly in light of the fact that the military judge already had disqualified the initial trial counsel and the initial convening authority, and already had dismissed the charge and its specification without prejudice. Therefore, the UCI issue did not serve as a proper basis for the military judge to dismiss the charge and specification with prejudice. Second, the military judge remedied any interference with Appellant’s right to counsel of choice by ordering Capt Adcock to serve as Appellant’s IMC; resetting the case management deadlines to accommodate Capt Adcock’s belated appointment; and allowing Capt Adcock to supplement any pleadings already filed. Therefore, because less drastic alternatives remedied the concerns raised by the military judge, his decision to dismiss the charge and specification with prejudice constituted an abuse of discretion. By Rodrigo Caruço
1 Comment
In Andrew v. White, 604 U.S. ___, No. 23-6573, 2025 U.S. LEXIS 40 (Jan. 21, 2025), the court holds a constitutional right to have "unduly prejudicial evidence" excluded in the mertis phase of a trial under the Due Process Clause. This might be beneficial for appellants who have their cases still on appeal. See, e.g., United States v. Sweeney, 70 M.J. 296, 304 (C.A.A.F. 2011); United States v. Tovarchavez, 78 M.J. 458, 462 (C.A.A.F. 2019). Old Chief v. United States, 519 U.S. 172 (1997) is recommended reading as well. The State spent significant time at trial introducing evidence about Andrew’s sex life and about her failings as a mother and wife, much of which it later conceded was irrelevant. In a federal habeas petition, Andrew argued that this evidence had been so prejudicial as to violate the Due Process Clause. Court of Appeals rejected that claim because, it thought, no holding of this Court established a general rule that the erroneous admission of prejudicial evidence could violate due process. That was wrong. By the time of Andrew’s trial, this Court had made clear that when “evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.” Payne v. Tennessee, 501 U. S. 808, 825 (1991).Payne v. Tennessee, 501 U. S. 808, 825, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991). 2025 U.S. LEXIS 406, at *1 (emphasis added). Importantly, Payne did not invent due process protections against unduly prejudicial evidence. The Court had several times before held that prosecutors’ prejudicial or misleading statements violate due process if they render a trial or capital sentencing fundamentally unfair. Donnelly v. DeChristoforo, 416 U. S. 637 (1974); Caldwell v. Mississippi, 472 U. S. 320, 338-3401 (1985); Darden, 477 U. S., at 178-183, Payne thus broke little new ground in this respect. By the time of the OCCA’s decision in this case, it was clear that the introduction of unduly prejudicial evidence could, in certain cases, violate the Due Process Clause. 2025 U.S. LEXIS 406, at *10. If the appellate court can be persuaded of a constitutional error, does that mean any prejudice has to be harmless beyond reasonable doubt?
Air ForceUnited States v. HogansThe Appellant had two complaints, (1) a discovery disclosure the day before trial means the evidence should have been excluded, and (2) the MJ's sua sponte R.C.M. 917 motion and allowing the government to reopen their case showed bias. AFCCA decides neither complaint is valid and so no relief.
An immunized witness against the Appellant was interviewed by the Appellant's DC the day before the trial and asked about a video she had recorded on her smartphone. She found the video and gave it to her DC, who gave it to TC. AFCCA notes that OSI had DFE'd the phone (with some problems), and the download was available to the defense had they visited OSI or asked for a copy--but there's no evidence they did that (the DFE had been done about 13 months before trial). On the other hand, neither OSI (nor TC?) had found the relevant video either. Friday, February 21, 2025 | 10:00 am - 2:00 pm VIA ZOOM "For his second administration, President Donald Trump has proposed and begun to execute a dramatic reimagining of the United States military. President Trump's reimagining of the federal military has included: (1) increased usage of the federal military domestically: (2) lessening or removing legal and bureaucratic restrictions on warfighting efforts internationally; (2) implementing measures for ensuring loyalty amongst general officers, while considering means to punish disloyalty; and (4) eliminating diversity, equity, and inclusiveness efforts within the military, to include banning transgender individuals from serving. President Trump proposes such a reimagining as means to ensure the federal military is prepared for rising global threats to the security of the United States. President Trump's proposals have been met with much controversy. This virtual discussion brings together many of the nation's leading national security and military law scholars to discuss President Trump's proposed reimagining of the United States military and the controversies that have arisen. The speakers will explore the legal and political frameworks in place that both enable and restrict President Trump's proposals, while also exploring the attendant impacts these reform measures may have on servicemembers, national security, and democratic and societal norms. It ultimately asks whether President Trump's reimaging of our nation's military makes sense - or does it present a threat to our national security, our servicemembers, and democratic and societal norms. And if it does pose such a threat, what remedies are available under the current legal and political frameworks." Agenda
All Times are Central Standard Time 10:00 AM – 11:00 AM: Session I – Potential Impact on Servicemembers: Exploring Issues Concerning Following (or Not) Orders, Military Justice, and Gender and Identity Moderator: Prof. Tony Ghiotto, University of Illinois College of Law Prof. John Dehn, Loyola-Chicago School of Law Prof. Rachel VanLandingham, Southwestern Law School Prof. Lesley Wexler, University of Illinois College of Law 11:15 AM – 11:30 AM: Break 11:30 AM – 12:30 PM: Session II – Potential Impact on Democratic, International, and Societal Norms: Exploring the Domestic Use of the Military, Civilian-Military Relations, and Compliance with and Support for the Law of Armed Conflict Moderator: Prof. Dan Maurer, Ohio Northern School of Law Prof. Brenner Fissell, Villanova School of Law Prof. Mark Nevitt, Emory University School of Law Prof. Frank Rosenblatt, Mississippi College School of Law 12:45 AM – 1:00 PM: Break 1:00 PM – 2:00 PM: Keynote Address: The Future of the Military and the Chain of Command in the Trump Administration 2.0 Professor Claire Finkelstein, University of Pennsylvania Carey Law School Mr. Michael Berry, Executive Director, Center for Litigation, America First Policy Institute Transparency in court-martial proceedings has long been an issue with both Congressional and media attention. In January 2025, the DoD General Counsel issued new guidance, and gives the JSC a new role. Your browser does not support viewing this document. Click here to download the document. Your browser does not support viewing this document. Click here to download the document. In 2008, Furlong was convicted at court-martial and sentenced to 15 months confinement, a BCD, and RiR for distribution of child pornography under Article 134 of UCMJ. AFCCA short-formed its affirmance of the findings and sentence. United States v. Furlong, ACM 37294, 2009 CCA LEXIS 124 (A.F. Ct. Crim. App. Mar. 25, 2009). Now, it is sometime before June 2019. Furlong "pled guilty to the distribution of child pornography, in violation of 18 U.S.C. § 2252A(a)(2)." He was initially sentenced to 284 months confinement, based partly on his prior conviction under Article 134 of distributing CP. It appears part of his plea bargain allowed him to avoid a conviction of "attempted solicitation of a minor under 18 U.S.C. § 2242(b)," with exposure to an additional "sentence of not less than 20 years' imprisonment." Keep in mind he was a registered sex offender at the time based on his court-martial conviction. However, on appeal, Furlong alleged that an Article 134 conviction was not a predicate offense justifying a sentence enhancement. During the litigation, the government agreed there was an error but suggested "reassessment" rather than a sentence rehearing. The district court agreed with the government and reduced the confinement to 240 months, still at the top of the sentencing range. Why was this error. Specifically, Furlong points to the text of the statutory language, which only lists Article 120 of the UCMJ as a predicate offense and not Article 134, and a Tenth Circuit decision, which held that Article 134 is not a predicate sentence enhancer under § 2252A. Id.; see United States v. Brown, 529 F.3d 1260, 1265 (10th Cir. 2008) (holding that because § 2252A "include[s] violations of the UCMJ [but] did not include Article 134, nor UCMJ violations relating to child pornography generally," a prior Article 134 conviction does not qualify as a predicate sentence enhancer). The Government does not contest Furlong's position and cannot identify a Sixth Circuit decision interpreting § 2252A to the contrary. Therefore, the Court agrees that the sentence enhancement was in error and grants Furlong's request that his conviction be "sentenced as a first-time conviction of not less than 5 years and not more than 20 years." As part of his argument for a sentence rehearing, Furlong stressed the "Court should "revisit its sentencing discretion under the new statutory parameters," including considering whether Furlong's "exemplary conduct" entitles him to a sentence "below the bottom of his agreed advisory Guidelines range of 235 months.""
The court disagreed, check out fn. 2. United States v. Furlong, Criminal Case No. 18-cr-20476, 2025 U.S. Dist. LEXIS 7145 (E.D. Mich. Jan. 14, 2025). The Orders Project was founded in 2020 to help connect military personnel with questions about the lawfulness of orders with civilian attorneys who can advise them. On Friday, The Orders Project became part of the National Institute of Military Justice, a Washington-based NGO established in 1991. Information about The Orders Project can now be found here. Military personnel seeking a referral and attorneys, law firms, and law school clinics willing to receive referrals should contact The Orders Project.
Update: Biden administration asks court to block plea deal for alleged mastermind of 9/11 attacks. Courthouse News Service, 7 January 2025, citing AP. Your browser does not support viewing this document. Click here to download the document. If you have been following events at Guantanamo regarding the pretrial agreements, the Court of Military Commission Review has provided their answer. Your browser does not support viewing this document. Click here to download the document. |
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
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