Army Court of Criminal Appeals

United States v. Lathrop

Until its certification, the one-volume ROT exhibits efficient, reasonable post-trial processing. However, once the ROT was certified, reasonable diligence ended, and dilatory post-trial processing began. This ROT was certified on 29 December 2023, but not put in the mail until 5 April 2024. This ROT was not mailed for over three months—longer than it took to transcribe, authenticate, and certify it.​

Said differently -- considering the record sat certified for months, it is reasonable for the public to perceive the delay was done to ensure the government got its pound of flesh. Considering the government also benefits from agreements to plead guilty, this is troublesome from both an integrity and fairness standpoint.

"As the motion judge noted, the field of eyewitness identification research did not even exist until years after the defendant's trial. . . . Both parties agree that eyewitness identification research was unavailable to the defendant at the time of trial. There is therefore ample support for the conclusion that the new research on eyewitness identification presented by the defendant qualifies as newly discovered evidence in this case. The motion judge did not abuse her discretion in reaching the same determination."
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. . . 
As I said, this is a pretty significant ruling. Typically, "newly discovered evidence" consists of things like an alternate suspect confessing, crime scene DNA finally being tested and excluding the defendant as a source, etc. Under this ruling in Gaines, however, changes in science can also constitute "newly discovered evidence." This would suggest that new evidence undermining forensic bite mark comparisons, "Shaken Baby Syndrome," etc. can constitute "newly discovered evidence" and grounds for a new trial.

United States v. Davis, __ M.J. ___ (C.A.A.F. 2025)

Judge P. subsequently decided that he would not "rule on any further unanimous verdict motions until the Army Court issued an opinion on the [unanimous guilty verdict] issue." In an affidavit to the ACCA that he filed in the course of the current litigation, Judge P. explained his reasoning:
• "[I]t was likely the defense would continue to file [unanimous guilty verdict] motions in all future cases regardless of the presiding judge."
• The government likely would not provide any additional authorities to support its position on this issue in any future case, and thus Judge P.'s future rulings would likely be the same.
• This state of affairs would result in additional stays of proceedings which "would last around six months" and would "essentially shut down at least half of the courts-martial in Europe and the Middle East [i.e., in the Army's 5th Judicial Circuit] for lengthy periods of time."
• Such delays "would be inconsistent with military justice."

Judge P. also clarified that his decision not to preside over trials with panel members "was not [an] attempt[] to arrange a particular result (i.e., a denial of the unanimous verdict motion), because [he] could not be certain how other military judges would rule." Further, he did not tell any other military judge how to rule "either expressly or impliedly." He decided to "only detail [himself] to or remain detailed on bench trials and to move other cases toward trial." His actions in this latter capacity would be confined to "handl[ing] arraignments and any motions for which the parties needed rulings significantly before trial in order to properly prepare (e.g., compel experts, compel discovery, compel witnesses, etc.) and to defer other motions, including unanimous verdict motions, to the trial judge for resolution."

United States v. Campos

The granted issue requires us to decide whether the “military judge abuse[d] his discretion by admitting and considering, over defense objection, allegations of additional misconduct in the unsworn victim impact statement.” We hold that the military judge abused his discretion, but we determine that the error was not prejudicial. We therefore affirm the decision of the United States Navy-Marine Corps Court of Criminal Appeals (NMCCA), which affirmed the findings and sentence in this case.

First, the Government contends that a victim may provide context for understanding the impact of the accused’s offenses and that the description about Appellant’s uncharged misconduct properly provided such context in this case.

Second, the Government argues that the description of the uncharged misconduct in the victim impact statement was proper under this Court’s decision in United States v. Mullens, 29 M.J. 398 (C.M.A. 1990). In Mullens, the accused pleaded guilty to two specifications of sodomy with his minor son and one specification each of indecent acts with his minor son and with his minor daughter. As part of his plea agreement, the accused made a stipulation of fact in which he admitted to committing additional instances of sodomy and indecent acts that were not charged. The government presented this stipulation of fact to the members during presentencing. This Court held that no error occurred because the uncharged misconduct was proper evidence in aggravation under R.C.M. 1001(b)(4) (1984 ed.).

[W]e decline to extend the holding of Mullens with respect t evidence in aggravation under R.C.M. 1001(b)(4) (1984 ed.) to apply to victim impact statements under R.C.M. 1001(c) (2019 ed.). Evidence in aggravation is different from a victim’s statement under R.C.M. 1001(c) in significant ways. Aggravation evidence is subject to the Military Rules of Evidence (M.R.E.), which means that a witness who provides such evidence must testify under oath and be subjected to cross-examination. In addition, the military judge must test the evidence for unfair prejudice under M.R.E. 403. United States v. Nourse, 55 M.J. 229, 232 (C.A.A.F. 2001) (following Mullens where the military judge expressly assessed the evidence under M.R.E. 403). In addition, the term “victim impact” now has a specific definition in R.C.M. 1001(c)(2)(B), which did not exist at the time Mullens was decided. 

Air Force

Appellant raises three issues on appeal: (1) whether the Government’s posttrial delay [of 155 days] entitles Appellant to appropriate relief; (2) whether the conditions of Appellant’s confinement subjected him to cruel and unusual punishment; and (3) whether the sentence that included a punitive separation is inappropriately severe.

​In determining whether the sentence remains appropriate in light of posttrial processing delay:

1. How long did the delay exceed the standards set forth in [Moreno]?

2. What reasons, if any, has the [G]overnment set forth for the delay? Is there any evidence of bad faith or gross indifference to the overall post-trial processing of this case?

3. Keeping in mind that our goal under Tardif is not to analyze for prejudice, is there nonetheless some evidence of harm (either to the appellant or institutionally) caused by the delay?

4. Has the delay lessened the disciplinary effect of any particular aspect of the sentence, and is relief consistent with the dual goals of justice and good order and discipline?

5. Is there any evidence of institutional neglect concerning timely post-trial processing, either across the service or at a particular installation?

6. Given the passage of time, can this court provide meaningful relief in this particular situation? We consider no single factor dispositive, and a given case may reveal other appropriate considerations for this court in deciding whether post-trial delay has rendered an appellant’s sentence inappropriate.

Gay, 74 M.J. at 744 (footnote omitted).