Selection of a jury of three- and possibly four-star generals starts Monday at Wright-Patterson Air Force Base in the court-martial of a former Air Force Research Laboratory commander accused of kissing and touching a woman without her consent.

The Editors

--- like you should, presume that he is not guilty of the alleged offenses.

These artistic elements were incorporated into the video for the purpose of delivering a non-written and nonoral message to the panel, but to whom should we attribute that message? We believe the answer to that question must be to Government trial counsel. In producing the video, trial counsel made creative and organizational decisions that lead us to believe that the video incorporated her own personal artistic expression.

Unsworn victim statements are not a vehicle by which the government can supplement its sentencing arguments by putting its own statements—oral, written, artistic, or otherwise—into the victim’s mouth. Of course, victims may confer with trial counsel in preparation for their unsworn statements.

Brenner Fissell

Editor

This appeal presents a question of mootness. A former military prisoner, while serving a term of supervised release, violated a condition of his supervision. After being arrested and while being detained, he brought the current lawsuit and claimed that the condition was unconstitutional. He has been released, and his term of supervision has ended. He continues this suit in part because he has been denied all veterans’ benefits due to the violation of a condition of supervision. Our issue is whether the denial of benefits is a collateral consequence sufficient to avoid finding his claim to be moot now that he has completed his term of supervision. We conclude that it may be, but there was no development of that issue in district court. We therefore VACATE and REMAND to the district court for further proceedings.

Foster insists that the condition itself was unconstitutional because successfully completing the group treatment sessions required an admission of guilt. Foster claims that this violated his Fifth Amendment right against self-incrimination, and he refused to admit guilt so that he could pursue a writ of coram nobis to establish his innocence.

The Tenth Circuit held that the pardon did not constitute a legal admission of guilt and that Lorance “sufficiently allege[d] ongoing collateral consequences from his conviction . . . rendering [the case] not moot."

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Brenner Fissell

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We apply the conclusion we reached in United States v. Tucker, __ M.J. __ , slip op. at 26 (C.G.Ct.Crim.App. 7 Apr 2022): that Moreno’s use of the convening authority’s action as a terminal benchmark prior to docketing has been superseded by statute and regulation. As in Tucker, there was no presumptively unreasonable delay in this case. Further, even under a full due-process analysis, Appellant was not deprived of due process.

[W]e apply a presumption of unreasonable delay triggering a full due-process analysis when: (1) the record of trial is not docketed with this Court within a total of 150 days of the completion of trial; or (2) we do not complete appellate review and render a decision within eighteen months of docketing. Tucker, slip op. at 26.

Not unlike customary international law, there is a body of customary military law that recognizes certain conduct as criminal in our specialized, military society—not through a specific statutory prohibition, but by dint of “longstanding customs and usages of the services.” In enacting the first two clauses of the “general article” (now Article 134, Uniform Code of Military Justice (UCMJ)), Congress incorporated customary military law into our criminal code. The President has listed many of these customary offenses in the Manual for Courts-Martial (MCM), but these do not—and cannot—create substantive criminal law; they are mere “examples” of customary offenses. There are others that, though otherwise unenumerated either by Congress or by the President, also exist under customary military law

These unenumerated Article 134 offenses have sometimes been referred to as “novel.” But this appellation is problematic; we will avoid it. An offense being “novel”—or “new and not resembling something formerly known or used”—stands in conflict with how customary law works. Article 134 is not an invitation for those making charging decisions to get creative. To the contrary, an offense under the first two clauses of Article 134, whether previously written or not, must be grounded in already-known custom and usage. If an offense is truly novel—new, lacking any semblance to something formerly known or used—it per se does not stand among the services’ longstanding customs and usages and cannot be the basis for a criminal conviction. Such is the case we have here.

[W]rongfully did or failed to do certain acts, to wit: consuming alcohol to the point of severe inebriation at a remote location on Amaknak Island, while it was dark outside, raining and near freezing, without properly notifying fellow crew of the location and without ensuring any effective means of requesting necessary assistance, and then leaving [Seaman Kelch] alone after it was clear that he was disoriented and in extremis due to intoxication and the effects of the elements, each of which actions contributed to the death of [Seaman Kelch]. Under the circumstances, this conduct was to the prejudice of good order and discipline in the armed forces.

​We conclude that at the time of Appellant’s conduct, there was no reasonably-known custom or usage prohibiting his conduct independent of the enumerated Article 134 offense of negligent homicide. The military judge therefore abused her discretion by accepting a plea of guilty to conduct that was: (1) not a crime under the UCMJ; and (2) covered by a presidentially enumerated Article 134 offense, and thus barred from being charged as an unenumerated Article 134 offense.