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. In United States v. Edwards, __ M.J. ___ (C.A.A.F. Apr. 14, 2022), the court sets aside the sentence. All five judges found trial counsel error, but Chief Judge Ohlson and Judge Sparks would find no prejudice and affirm the findings and sentence. R.C.M. 1001A
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. This would not be the first time for something like this. Usually the MJ shuts down the music and any voice-over to the slide show.
In our 2021--Year In Review in the CAAF Rules Guide, we (Fidell, Fulton, Sullivan, and myself) wrote: "In Proctor an O-5 commander, knowing of a pending case of NCO misconduct, gave a speech urging subordinates not to 'enable' bad actors, and used as an example his past refusal to write a character letter for a subordinate facing an NJP.... CAAF agreed with the accused that there was 'some evidence' of UCI, but that the public perception of unfairness was not sufficiently egregious to warrant relief.... Proctor illustrates CAAF at its most disappointing: an institution set up primarily for the purpose of reducing command influence has created a byzantine, multi-step test for these claims (each step another opportunity to lose), but appears to lack the institutional will to apply it." Proctor followed the Bergdahl decision of the prior year, about which I wrote: "CAAF descended into a burden-shifting maze, cloaking a judgment-call in technocratic language. And even when one descends into the maze with the court, one must conclude that it took wrong turns." This year, it appears likely that CAAF will be able to review the UCI claim in Gilmet, where a senior Marine JAG leader strongly implied to a group of defense counsel that zealous advocacy will harm their career prospects. A friend writes, "Can any Marine or Marine's mother expect a fair trial on publicly available facts?" Gilmet is CAAF's moment of truth. If it continues to react as an ostrich to blatant unlawful command influence, it will be consigning itself to irrelevance and betraying the purposes of of its founders--purposes which are as important today as they were when the court was created. Brenner FissellEditor Meghhan Myers, reports in Military Times, Pentagon unveils new sexual assault response plan - with a deadline of up to 8 years, that "The Defense Department is rolling out an eight-year plan implement dozens of recommendations from its Independent Review Commission on sexual assault, chief among them standing up an independent organization to prosecute sexual assaults, harassments and related crimes, taking them outside the chain of command."
She also reports, Budget hang-ups slow sexual assault prevention reforms. Foster v. Warden, was decided by the Fifth Circuit on April 12, 2022. 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. Having served nine years of a 15-year sentence to confinement, Foster was paroled. As part of his parole he was required to complete a sex-offender group program. (Success requires admitting the offense.) Allegedly being noncompliant with the program, Foster's parole was revoked and he was arrested and imprisoned. He filed suit alleging that the parole condition was unconstitutional, partly because of the Fifth Amendment claim. His case was dismissed in district court because by then he had been released from confinement. However, Foster maintained the case was not moot because of continuing collateral consequences. 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. Citing to Lorance, the court remands the case to the district court to fully explore, make a record, and get Government input. The court notes there may be a valid claim that the collateral effects undercut a mootness claim. 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." United States v. Foster: Petition den. at CAAF on Feb. 22, 2010. I'm not seeing a CCA report online.
Recent polling data from YouGov indicates low levels of trust in DoD's reporting of civilian casualties caused by US military abroad. Only 25% responded that this reporting was trustworthy or very trustworthy. ![]()
Brenner FissellThursday, April 14: Oral argument in United States v. Dial will be held at the U.S. Army Court of Criminal Appeals courtroom at 9275 Gunston Road, Building 1450, Fort Belvoir, VA, at 10:00 a.m. The courtroom is on the first floor of the building on the side closest to the parking garage. Current COVID protocols apply. The courtroom only has 9 seats for members of the public but there is an overflow room on the 4th floor where the argument will be live-streamed. There is currently no mask requirement. (Case documents here). Amicus brief by NACDL here. Older news
United States v. Anderson, CGCCA, a GP to eight false claims, for which a RiR-E2 and a BCD was imposed. This is a post-trial delay case under the new rules. 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. The court did however address the unreasonable delay analysis. [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. In Tucker, the court begins, 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 Which brings us to the, to be dismissed, novel specification. Appellant pleaded guilty to a specification alleging that he: [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. |
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