​Chief Justice Roberts once said, “Judges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire.”1 With that in mind, we consider whether a military judge may strike a term in a negotiated plea agreement and then rewrite the agreement to his own liking over the objection of one or both of the parties. The President does not have a line-item veto and neither does a military trial judge. We answer in the negative.

Affidavits from appellant's military and civilian defense counsel outlined their efforts in preparing both character and mitigation evidence for the pre-sentencing hearing and the tactical reasons for ultimately editing the presentation of that evidence. Appellant's military defense counsel submitted an affidavit stating she interviewed several family members, friends, supervisors, and colleagues of appellant and prepared those witnesses to testify at appellant's pre­sentencing hearing. Concerned that good soldier evidence would allow the government to present evidence of appellant's prior misconduct of an unfounded allegation of and obstruction of justice, civilian defense counsel requested this testimony be reduced to written statements.

As trial approached, the civilian defense counsel made a tactical decision not to admit any documentary evidence during the pre-sentencing hearing in an effort to prevent the government from potentially submitting rebuttal evidence of appellant's prior misconduct.' According to the military defense counsel's affidavit, she did not agree with the civilian defense counsel's approach to severely limiting the presentation of written character statements. However, the military defense counsel's affidavit states that appellant ultimately agreed with the advice of his civilian defense counsel to not admit any character letters during the pre-sentencing hearing. The civilian defense counsel's affidavit stated that, on at least three occasions, he discussed his strategic decision to limit pre-sentencing evidence of appellant's good military service in order to avoid opening the door to the government admitting information of appellant's prior misconduct and appellant agreed with that approach. Rather, the civilian defense counsel determined that it would be best to wait and submit the written character statements in appellant's post-trial submission to the convening authority.

In 2013, appellant was investigated for the offense of [X]. While the [X] was unfounded, there was evidence in the investigation that appellant made efforts to obstruct justice during the investigation by asking a witness not to talk to the military. Appellant's witness production request included ten witnesses, both military and civilian, that appellant asserted would testify as to his rehabilitative potential during the pre-sentencing hearing. Given that appellant plead guilty to obstruction of justice approximately five years after his prior attempt to do so was relevant information as to both appellant's good military service and rehabilitative potential. The government could have utilized appellant's prior efforts to obstruct justice by: (1) cross-examining his character witnesses about this prior misconduct in order to test the strength of their opinion as to his rehabilitative potential, or (2) presented the information as rebuttal evidence concerning appellant's rehabilitative potential or good military service. See Scott, 81 M.J. at 86 (C.A.A.F. 2021) ("[R]ecogniz[ing] that, in some cases, trial defense counsel may not wish to call witnesses on sentencing who, through their testimony, may open the door for the government to present additional adverse evidence."). 

[The] decision to constrain the presentation of character evidence reasonable under the circumstances. See United States v. Datavs, 71 M.J. 424 (C.A.A.F. 2012) (Defense counsel do not perform deficiently when they make a strategic decision to accept a risk or forego a potential benefit, where it is objectively reasonable to do so.").

Despite appellant's assertions to the contrary, the conduct to which appellant pied guilty was significant in not only attempting to impede a law enforcement investigation but leveraging his rank and position of authority to influence subordinates to commit a criminal offense for his benefit. Even if defense counsel presented the few pages of medical evidence of appellant's - diagnosis in 2017 and appellant's ERB, there is no "reasonable probability" that the sentence would have been any different given the severity of appellant's misconduct.

Cheers, Phil Cave

[T]he DNA evidence used to describe the suspect was not a single source sample known to have come from the perpetrator. Rather, it was “touch DNA,” also known as “trace DNA,” from multiple sources that might or might not have come from the perpetrator—something the police simply had no way of knowing when they applied for the John Doe arrest warrant. Notably, the state has not identified a single case, and our research has failed to uncover one, in which mixed partial DNA profiles from touch DNA provided the description of a suspect in a John Doe arrest warrant. Touch DNA “is a term used to describe DNA that is left behind just by touching an object …. Notwithstanding its name, however, touch DNA does not necessarily indicate a person’s direct contact with the object. Rather, according to [experts], abandoned skin cells, which make up touch DNA, can be left behind through primary transfer, secondary transfer, or aerosolization.” (Internal quotation marks omitted.) State v. Dawson, 340 Conn. 136, 153, 263 A.3d 779 (2021). Even when a person touches an object, “DNA is not always detectable, meaning that it is possible to have someone touch an object but not leave behind detectable DNA because … some people leave more of their skin cells behind than others, i.e., some people are better ‘shedders’ of their DNA than others. There are also other factors that affect the amount of DNA left on an object, such as the length of contact, the roughness or smoothness of the surface, the type of contact, the existence or nonexistence of fluids, such as sweat, and degradation on the object.” Id., 154.
 
As a result, touch DNA “poses potential problems that are not present, or are less often present, with DNA obtained from evidence consisting of bodily fluids ….” 7 C. Fishman & A. McKenna, Jones on Evidence (7th Ed. 2019) § 60:9, p. 785. For example, “[t]ouch DNA will often be available in much smaller quantities than DNA extracted from blood, semen, or hair”; id.; and “the presence of touch DNA may often be far less probative of a defendant’s guilt than DNA derived from bodily fluids.” Id., p. 787. Indeed, “trace samples lack the clarity of the more straightforward DNA evidence that can lead to a clear match to a specific individual. An object is found at or near a crime scene. A technician swabs the object to test for that DNA. These trace samples are usually quite small, there is often more than one person’s DNA, and the evidence is of a much poorer quality.” B. Stiffelman, supra, 24 Berkeley J. Crim. L. 115. “When dealing with such small amounts of DNA, there is much greater ambiguity as to how the DNA ended up on the object. For example, the DNA could have been left by someone who touched the object, or even by someone who touched the person who then touched the object. … In short, small amounts of DNA can be easily transferred and [travel]. Because of this, finding someone’s DNA on an object is less significant to a determination of guilt or innocence of a suspect.” (Footnote omitted.) Id., 115-16. (Emphasis added.)

Appellant contends that the MJ erred when he allowed LV to discuss an uncharged offense in her unsworn statement to the military judge. Specifically, Appellant argues that LV’s unsworn statement was focused on threatening comments he made to her after the last incident that were not charged, and additionally, that the threatening comments were not tied to the offenses to which Appellant pleaded guilty.
. . .
LV’s unsworn statement included comments she attributed as threats he directed at her after the charged conduct. LV’s unsworn statement did not contain the word “threat,” nor did she at any point ask the military judge to punish Appellant for threating her the direct physical pain the assaults caused, and the emotional, psychological and financial fall-out that she experienced post-assault. Part of the social and psychological pain included Appellant’s behavior towards her in the days immediately following the assaults. As a direct result of the assaults, LV tried to end her relationship with Appellant, who responded by continuing his controlling behavior towards her and prolonging her psychological harm. Therefore, we find that the victim’s description of the impact in this case was closely related to the charged offenses, and thus was proper victim impact material, as it pertained to the psychological impact she experienced following the assault.

Trial counsel then argued:

     [LV] stood before you today and told you that although the physical pain from her assault diminished that she still suffered extreme emotional trauma. She was forced to leave her life in Wichita Falls because [Appellant] was making threats against her, and she feared for her own safety. She lost her job, she lost her friends, she lost her school, and most importantly she lost her sense of security. And why? Because that day she chose to focus on her schoolwork as opposed to showering [Appellant] with the undivided attention that he required at the exact moment that he required it.

At the close of trial counsel’s argument, she discussed the need for the sentence to protect society from Appellant. She stated that “6 months’ confinement is the most appropriate punishment when considering the protection of society, especially given the threats that were made here. It would provide the victims with a sense of psychological well-being to know that [Appellant] can’t cause any more harm while he’s in jail.”

Cheers, Phil Cave

President Donald Trump demanded that the military recall two retired four-star officers who criticized him so they could be court-martialed, a new book says.
According to a copy of ex-Secretary of Defense Mark Esper’s memoir, A Sacred Oath, obtained by TPM, Trump demanded that former Gen. Stan McChrystal and former Navy Admiral William H. McRaven be recalled into active duty so that they could be court-martialed for criticizing the President.