National Institute of Military Justice
  • Home
  • About
    • Officers
    • Board of Directors
    • Fellows
  • Orders Project
    • Contact Us
    • Who We Are
    • Sourcebook
  • Trans Rep. Project
  • CAAFlog
  • Global Reform
  • Library
    • Amicus Briefs
    • Position Papers & Letters
    • Reports
    • Gazette
    • Miscellaneous
    • General Military Law
  • Links
    • State Codes
    • Non-DoD Organizations
    • Foreign Systems
  • Prizes
  • Contact Us
  • Donate
  • Home
  • About
    • Officers
    • Board of Directors
    • Fellows
  • Orders Project
    • Contact Us
    • Who We Are
    • Sourcebook
  • Trans Rep. Project
  • CAAFlog
  • Global Reform
  • Library
    • Amicus Briefs
    • Position Papers & Letters
    • Reports
    • Gazette
    • Miscellaneous
    • General Military Law
  • Links
    • State Codes
    • Non-DoD Organizations
    • Foreign Systems
  • Prizes
  • Contact Us
  • Donate

CAAFlog

United States v. Taylor--AFCCA

3/31/2022

 
Taylor's GP case is back after correcting for post-trial errors. He had pled guilty to five specifications of conduct unbecoming and was sentenced to 60 days, $1.5K x 3, a Dismissal, and a reprimand. His issues now are,

(1) IAC.
(2) Provident GP?
(3) Inappropriately severe sentence.

Note. Whether a court-martial conviction is for a felony or a misdemeanor is based on how a state interprets the court-martial offense of which convicted not what the forum was. In some states, a special court-martial conviction for theft over $1000.00 is a felony even though the forum was a SPCM, for example. Generally, the state courts looks to see if there is an "equal" or similar charge under their law and how that is classified. The charges here would not likely be considered a felony based on a reading of the opinion--what state classifies adultery (assuming that is still on the books) as a felony? What state classifies "fraternization" with a co-worker as a crime and a felony?

GAO Report onDoD sexual assault response

3/31/2022

 
SEXUAL ASSAULT. DoD and Coast Guard Should Ensure Laws Are Implemented to Improve Oversight of Key Prevention and Response Efforts. Report, GAO-22-103573.
​Congress passed 249 statutory requirements directing the Department of Defense (DOD) and the Coast Guard to address prevention of and response to sexual assault incidents, and most remain in force. The statutory requirements covered four broad categories: Victim Assistance and Advocacy (37 percent); Management and Oversight (33 percent); Military Justice and Investigations (21 percent); and Prevention Efforts (9 percent). DOD fulfilled most of these statutory requirements, such as establishing comprehensive policies to prevent and respond to sexual assault as well as training for sexual assault forensic and nurse examiners. However, DOD partially implemented 24 requirements and did not implement 5 requirements. (See figure.) For example, DOD did not report certain information in annual reports; establish and implement an evaluation plan to assess the effectiveness of the outcomes of its programs and activities related to sexual assault prevention and response; or ensure the tracking of commander compliance for conducting organizational climate assessments. 

​Until DOD fully implements all of these statutory requirements, such as those related to program evaluations, Congress and DOD may continue to lack necessary data about the effectiveness of programs and activities, which can affect oversight. Additionally, DOD may not ensure compliance with the laws and may not fully implement efforts to support victims and prevent sexual assaults.
The report notes that "Some of the issues the GAO found date back nearly 20 years to requirements that have since expired without being fulfilled. Others involve repeated failures to satisfy Congress’ specifications." See Chad Garland, Armed services didn’t implement dozens of measures to help stop sexual assault, GAO finds. Stars & Stripes, March 30, 2022.

United States v. Cashin--ACCA

3/30/2022

 
Cashin was tried and sentenced by an "officer" panel.

Findings: G of A&B and obstruction of justice. NG of "multiple" rapes.

Sentence: 14 days confinement and a Dismissal.

Issue. Abuse of discretion in denial of a member challenge.

         The court gives lengthy quotes from the voir dire and is helpful in exploring sexual assault policy, commander, and command requirements.
[T]he military judge's factual findings were-while perhaps not clearly erroneous-not exactly correct. Between the military judge and trial counsel, the concept of "walling off experiences as a battalion commander was attributed to LTC x multiple times. However, LTC x never used that phrase; rather, it was incorporated into the military Judge's and trial counsel's voir dire questions. The military judge quoted LTC as saying, "At the end of the day, I can wall it off. I can judge this case on the facts." However, LTC did not expressly say this.
. . . 
We agree that LTC x was not actually biased toward finding appellant guilty. While we note that some of his responses were arguably equivocal, we place significant weight on the military judge's assessment that LTC x was credible and forthcoming. Reviewing a cold appellate record, we are ill-positioned to assess LTC x's demeanor as he answered voir dire questions. Were LTCs "probably[.]" and "it's difficult[.]" answers actually indicators of equivocation? Was his commitment to "try to be objective" sufficient? For purposes of actual bias, we do not disturb the military judge's denial of the challenge However, viewed in totality and in assessing implied bias, we find LTCs voir dire answers "less than resounding."
 
Lieutenant Colonel x also described himself as directly involved in changing the culture in his battalion regarding sexual harassment and sexual assault. While he did not explicitly detail his methods in bringing about this culture change, we gather an overall theme from his voir dire: support alleged victims. This theme is consistent with the Army's institutional-level approach, and nothing in this decision should be interpreted as criticizing it. We simply note that Army senior leaders require commanders and other leaders to be personally and decisively engaged in preventing and responding to allegations of sexual harassment and sexual assault as a fundamental part of effective command and leadership. Mindful of this
institutional backdrop, military justice practitioners should be prepared to reliably assess, discuss, and decide whether those same commanders and leaders are actually or impliedly biased when sitting in judgment of cases involving alleged sexual assault or sexual harassment. Prospective panel members who cannot table their obligation to support the Army's strategic objectives in favor of their controlling duty to be fair and impartial cannot serve, because they are actually biased. Yet even when a member convinces a military judge that they can, as a matter of fact, fairly and impartially decide the case, it is a separate question whether they should, as a matter of /aw-especially where the public perceives obedience to orders and commands as a defining feature of military service. As a result, when a close call materializes regarding a panel member's suitability, defense causal challenges must be liberally granted.
Findings and sentence set-aside.

United States v. Reynolds--ACCA

3/30/2022

 
​Reynolds is a To-Catch-A-Predator case, tried before an "enlisted" panel.

Findings: G of attempted sexual assault of a child and attempted sexual abuse of a child.

Sentence: By MJ, five years, RiR, and a DD.

Issues: (1) Abuse of discretion denying motion to compel forensic psychologist, and (2) IAC regarding MJ's instructions (failure to request instruction for mistake of age).

Issue 1.
[H]is assignment of error is nearly identical to the issue we addressed last year in United States v. Hunt, ARMY 20200158, 2021 CCA LEXIS 457 (Arm Ct. Crim. App. 9 Sep. 2021) (mem. op.). Hunt was [a similar] ase [to Appellant's].
. . .
Indeed, the only meaningful factual distinction between Hunt and this case is that appellant here actually traveled in the hopes of meeting up with one of his chat partners, whereas Hunt did not. Hunt also requested that an expert assistant be appointed to his defense team, and the (same) military judge denied Hunt's request. We affirmed the military judge's decision, and explained that Hunt could "show only the possibility" that an expert assistant could have assisted in his defense, and that this was not a sufficient showing under the applicable precedent.
At best the Appellant could only show "the mere possibility" of assistance--"that is not enough."

​Issue 2.

First the court addressed waiver when DC answered "none" and "No, Your Honor" when asked counsel about any "additioaal instructions." So, "likely waiver." Regardless, the court addressed the issue as follows.
The instructions the military judge did give resolved this assignment of error.

On this point, the military judge instructed the panel that the government had the affirmative obligation to prove beyond a reasonable doubt that appellant actually believed that [x] and [x] "had not attained he age of 16 years" at the time of the attempted sexual assault or sexual abuse.

Based on this instruction, if the panel credited appellant's testimony that he did not think the individuals he was chatting with were minors, then he was not guilty because of a failure of the government's proof, without having to resort to any affirmative defenses. Cf United States v. Teague, 75 M.J. 636, 638 (Army Ct. Crim. App. 2016) (finding thar mistake of fact defense was "baked in" to the elements themselves where the government was required to affirmatively prove that appellant "knew or reasonably should have known" that victim was incapable of consenting). Stated differently, the instructions appellant actually received were more favorable to him than the one that he now claims his counsel should have requested. 
. . . 
While the parties did not discuss the issue at trial, it is apparent that the military judge tailored his instructions to account for the fact that appellant was charged with attempted sexual assault of a child and attempted sexual abuse of a child, and not with the substantive offenses themselves. As these instructions recognized, to be guilty of an attempt appellant had to have the "specific intent to commit the underlying offense"-here, sexual abuse of a child and sexual assault of a child. Thus, as the military judge instructed, if appellant believed hat he was talking to adults, he did not have the requisite specific intent to commit
he inchoate offense of attempt.
. . . 
Appellant's counsel therefore did not render deficient performance.
Findings and sentence affirmed.

Note, this is one of several opinions coming from ACCA using a "cleaned up" cite.

Application for review at the CCA

3/30/2022

 
United States v. Howard is an example of the new practice of appeals in subjurisdictional cases. We will continue to refer to cases where the accused does not qualify for UCMJ art. 66 review as subjurisdictional cases.
[T]he court-martial members sentenced Applicant to reduction to E-5, forfeiture of $500.00 per month for three months, and confinement for 30 days.

The convening authority approved the sentence and ordered it executed.2 On 15 July 2020, a judge advocate reviewed the case, in accordance with Article 65, Uniform Code of Military Justice [UCMJ],3 and determined that the court-martial had jurisdiction over Applicant and each offense of which he was found guilty, that each specification of which he was found guilty stated an offense, and that the sentence was legal. The judge advocate also responded to each allegation of error raised by the Accused, finding no error.

On 17 September 2020, Applicant applied for review by the Judge Advocate General, in accordance with Article 69(a), UCMJ. On 20 October 2021, the Judge Advocate General denied the Application for Relief. On 20 December 2021, Applicant timely submitted to this Court an Application for Review of the Judge Advocate General’s Action, in accordance with Article 69(d)(1)(B), UCMJ. 

The convening authority suspended the $500.00 forfeiture for three months, provided SO1 Howard maintain an allotment for his wife in the amount of $500.00 for three months. 10 U.S.C. § 865. United States v. Howard, NMCCA No. 202000251 Order Denying Application for Review.

We have reviewed the Action taken by the Judge Advocate General in this case and the Application for Review, and have determined that the Application does not demonstrate a substantial basis for concluding that the Action under review constituted prejudicial error.

Amending Mil. R. Evid. 702

3/30/2022

 
The military rules of evidence are based on the federal rules with some modifications and additions. Any rule change comes into force 18 months after it is effective in district court unless the President says otherwise. See Military Rule of Evidence 1102 (Mil. R. Evid.). 
 
Mil. R. Evid. 702 deals with testimony from experts. The concept is to ensure that expert testimony is reliable and relevant to the proceedings. The federal rule was meant to substitute for the Frye test that had been followed since about 1923. In 1993, the Supreme Court turned to interpretation of the rule in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The court agreed that Frye was no longer the standard for the admissibility of expert testimony. The court then listed some factors for the trial judge to consider. This began the “Daubert Test” motion practice. In 2000 federal rule 702 was updated to account for the Daubert “factors.” Daubert was also meant to remind judges that they are gatekeepers to prevent “junk” science entering the courtroom. 
 
The military appellate courts have themselves adopted Daubert and provided additional factors in United States v. Houser, 36 M.J. 392 (C.A.A.F. 1993) and United States v. Griffin, 50 M.J. 278 (CAAF 1999). The parties must address, and the military judge consider at least, 
 
  • Is the expert qualified through special knowledge, training, or education? A college degree is not required and someone with practical experience can testify if they have sufficient knowledge—remember the scene from My Cousin Vinnie? In United States v. Roach, 644 F. 3d 763 (8th Cir. 2011), the court notes not ranking academic training over demonstrated practical experience. The court cited to United States v. Anderson, 446 F.3d 870, 875 (8th Cir. 2006); Fox v. Dannenberg, 906 F.2d 1253, 1256 (8th Cir. 1990).   
  • Is the testimony a proper subject to discuss because it will help the factfinder understand a fact in issue because it is about something is not expected to understand? See Mil. R. Evid. 702. 
  • Does the testimony invade the province of the factfinder? For example, there cannot be an opinion that a crime has been committed and that a particular person did it. United States v. Birdsall, 47 M.J. 404, 410 (CAAF 1998) (error to opine those sons were “victims of incest by their father”). 
  • Is the expert’s opinion based on admissible evidence or inadmissible hearsay if reasonably relied upon by experts in the particular field when they form opinions? More than a bare opinion is needed from an expert and there must be a suitable set of facts underlying the opinion. See Mil. R. Evid. 702 and 703. 
  • Is the testimony relevant? See Mil. R. Evid. 402. 
  • Is the science or methodology and conclusions (1) reliable, (2) accepted in the science community, (3) been sufficiently tested, (4) peer reviewed and publication, (5) have a high error rate, (6) are there standard practices and controls that are followed, and (7) does the scientific community accept the science? Daubert. 
 
The Committee on Rules of Practice and Procedure Judicial Conference of the United States asked for public comment on proposed changes to several rules of evidence. (See page 299 of the request.) 
 
Court-martial practitioners know that the Military Rules of Evidence (Mil. R. Evid.) are based on the federal rules. There have been some additions, such as those found in Section 3, but several federal rules are not made applicable. 
 
Last year, the Advisory Committee on Evidence Rules unanimously approved a proposal to amend Rule 702. The comment period for the amendment to the federal evidence rule on expert testimony closed last month, and all signs indicate that these necessary changes, which would clearly establish the standard for admissibility of this testimony, will be approved by the Supreme Court soon and take effect Dec. 1, 2023. 
 
See Elizabeth Bernard, ANALYSIS: Say Goodbye to ‘Daubert Motion’, Hello to New Rule 702(1).  
 
If the rule changes, and unless the President says differently, the new rule is effective at courts-martial 18 months after adoption in federal courts. See Mil. R. Evid. 1102. 

Punishment for acquitted conduct

3/29/2022

 
18 U.S.C. § 3661 currently governs sentencing evidence in federal court.

Prof. Berman at Sentencing Law & Policy reports that,
Specifically, as detailed in this press release from the office of Congressman Steve Cohen, a bipartisan bill which prohibits the consideration of acquitted conduct in sentencing received overwhelming bipartisan support last night.  Here are excerpts from the press release:
Congressman Steve Cohen (TN-09), Chairman of the Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties, today addressed the House of Representatives and urged passage of his bill, the Prohibiting Punishment for Acquitted Conduct Act. The bill later passed the House on a vote of 405 to 12.
Congressmen Cohen and Kelly Armstrong (N.D., at large) introduced the measure last year to end the unjust practice of judges increasing sentences based on conduct for which a defendant has not been convicted.  In his speech on the House floor today, Congressman Cohen said, in part:  “I want to thank Mr. Armstrong for working with me on it. He was a strong proponent of the bill and it is truly bipartisan and bicameral...I’ve got a few pages of speeches here but there’s no reasons to – a long time ago I was told – you make the sale and you sit down. The sale has been made, I believe.”  See those remarks, including part of the debate, here.
When the Judiciary Committee voted to advance the measure in November, Congressman Armstrong made the following statement: “The right of criminal defendants to be judged by a jury of their peers is a foundational principle of the Constitution. The current practice of allowing federal judges to sentence defendants based on conduct for which they were acquitted by a jury is not right and is not fair.”
The version currently before the Senate is here.

A Report by the New York City Bar about the legislation is here.

Will Congress make a similar change in the UCMJ?

Will the President adopt a similar practice in the Manual for Courts-Martial?

Should guilt be decided by a unanimous vote

3/27/2022

 
Update 21032022: The ACCA has scheduled oral argument en banc in Dial. for April 14, 2022, on the following issue.

WHETHER THE MILITARY JUDGE ERRED WHEN GRANTING DEFENSE’S MOTION FOR APPROPRIATE RELIEF REQUIRING THE PANEL TO HAVE A UNANIMOUS VERDICT FOR ANY FINDING OF GUILTY AND TO MODIFY THE INSTRUCTIONS
ACCORDINGLY.
On March 17, 2022, the Air Force Court of Criminal Appeals decided United States v. Westcott, No. ACM 39936, 2022 CCA LEXIS 156 (A. F. Ct. Crim. App. Mar. 17, 2022) (memorandum op.), at least one judge of the court would hold that the Appellant was denied the right to a unanimous “jury” finding of guilt. Slip op. at *108.  ​
A general court-martial panel (jury) need only have a six out of eight votes for guilt. Should that change because a nonunanimous "jury" is unconstitutional in all state and federal courts since Ramos v. Louisiana?

Prof. Vladeck had raised the issue in a supplement to a petition for review in United States v. Scott, an AF case. Document here. The petition was denied March 3, 2022.
  • Opening brief: https://justsecurity.org/wp-content/uploads/2022/02/Scott-USCA-Dkt.-No.-22-0084-AF-Supplement-to-Petition-for-Grant-of-Review-2-Feb-22.pdf…
  • U.S. response: https://justsecurity.org/wp-content/uploads/2022/02/Scott-22-0084-AF-United-States-Answer-to-Supplement-to-Petition-for-Grant-of-Review-22-Feb-22.pdf
  • Reply: https://justsecurity.org/wp-content/uploads/2022/02/Scott-USCA-Dkt.-No.-22-0084-AF-Reply-to-Governments-Answer-to-Supplement-to-Petition-for-Grant-of-Review-25-Feb-22.pdf

On February 24, 2022, the ACCA specified this issue in the Dial case,
  • WHETHER CONVICTIONS OF SERVICEMEMBERS WITHOUT A UNANIMOUS VERDICT FOR OFFENSES UNDER CLAUSE THREE OF ARTICLE, 134, UCMJ, IMPLICATES THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.

Brief--Government Petition for Writ of Prohibition in Dial.
Brief--Government Supplement to the Writ-Petition
Here is the brief in opposition to the Writ petition.

Here are links to the POD amicus filings. Query: does United States v. Matthews, 16 M.J. 354 (C.M.A. 1983) have any relevance?

United States v. Ferreira. ARMY MISC 20220034 (A. Cr. Crim. App. Jan. 28, 2022) The government has filed for and received a stay of proceedings in this case based on the "Dial" issue. The government also petitioned for a Writ of Prohibition. Likely the petition is similar to that filed in Dial.

A petition has been filed in United States v. Dial, ARMY MISC 20220001 (A. Ct. Crim. App. Jan. 4, 2022)..

A reader has suggested reviewing R. v. Thwaite,  [2011] WLR 1125, [2010] EWCA Crim 2973, [2011] 1 WLR 1125, [2011] 1 Cr App Rep 19, [2011] 1 Cr App R 19.

MAJ Hugh E. Henson, The Hung Jury: A Court-Martial Dilemma. 35 MIL. L. REV. 59 (1967).

Vaccine litigation Updates

3/25/2022

 
The Supreme Court has acted on the partial stay of the injunction request in Austin v. U.S. Navy SEALS. a vaccine case pending in the Fifth Circuit Court of Appeals.

"The application for a partial stay presented to JUSTICE ALITO and by him referred to the Court is granted. The district court’s January 3, 2022 order, insofar as it precludes the Navy from considering respondents’ vaccination status in making deployment, assignment, and other operational decisions, is stayed pending disposition of the appeal in the United States Court of Appeals for the Fifth Circuit and disposition of the petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the judgment of this Court."

Justice Thomas would deny the request and Justices Gorsuch and Alito dissent.

SASC hearing for M. Tia Johnson, nominated to CAAF

3/23/2022

 
On March 22, 2022, COL (ret) Tia Johnson had a  Senate Armed Services Committee hearing on her nomination to be a Judge of the U.S. Court of Appeals for the Armed Forces. Her opening statement is here, and her responses to the Committee's advance policy questions are here.

See status of her nomination here.
<<Previous
    Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
    Picture
    Co-editors:
    Phil Cave
    Brenner Fissell
    Links

    ​SCOTUS
    CAAF

    -Daily Journal
    -2025 Ops
    ​
    ACCA
    AFCCA
    CGCCA
    NMCCA
    JRAP
    JRTP


    UCMJ

    Amendments to UCMJ Since 1950 (2024 ed.)

    Amendments to RCM Since 1984 (2024 ed.)

    Amendments to MRE Since 1984 (2024 ed.)
    ​
    ​
    MCM 2024
    ​
    MCM 2023

    MCM 2019
    MCM 2016
    MCM 2012
    MCM 1995

    ​
    UMCJ History

    Global Reform
    Army Lawyer
    JAG Reporter
    ​
    Army Crim. L. Deskbook

    J. App. Prac. & Pro.

    Dockets

    Air Force

    Art. 32.
    Trial.

    Army

    Art. 32.
    Trial.

    Coast Guard

    Art. 32.
    Trial.
    ​"Records."

    Navy-Marine Corps

    Art. 32.
    Trial.
    "Records."

    Archives

    June 2025
    May 2025
    April 2025
    March 2025
    February 2025
    January 2025
    December 2024
    November 2024
    October 2024
    September 2024
    August 2024
    July 2024
    June 2024
    May 2024
    April 2024
    March 2024
    February 2024
    January 2024
    December 2023
    November 2023
    October 2023
    September 2023
    August 2023
    July 2023
    June 2023
    May 2023
    April 2023
    March 2023
    February 2023
    January 2023
    December 2022
    November 2022
    October 2022
    September 2022
    August 2022
    July 2022
    June 2022
    May 2022
    April 2022
    March 2022

    Categories

    All
    ByTheNumbers
    Case2Watch
    CrimLaw
    Evidence
    Fed. Cts.
    Habeas Cases
    IHL/LOAC
    Legislation
    MilJust Transparency
    NewsOWeird
    Opinions ACCA
    Opinions-ACCA
    Opinions AFCCA
    Opinions CAAF
    Opinions CGCCA
    Opinions NMCCA
    Readings
    Sentenciing
    Sex Off. Reg.
    Sexual Assault
    Supreme Court
    Unanimous Verdicts

    RSS Feed

Proudly powered by Weebly