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,
(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?
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.
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.
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.
Findings and sentence set-aside.
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).
[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].
At best the Appellant could only show "the mere possibility" of assistance--"that is not enough."
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.
Findings and sentence affirmed.
Note, this is one of several opinions coming from ACCA using a "cleaned up" cite.
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 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,
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.
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:
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
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.
On February 24, 2022, the ACCA specified this issue in the Dial case,
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,  WLR 1125,  EWCA Crim 2973,  1 WLR 1125,  1 Cr App Rep 19,  1 Cr App R 19.
MAJ Hugh E. Henson, The Hung Jury: A Court-Martial Dilemma. 35 MIL. L. REV. 59 (1967).
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.
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.
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
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