United States v. Raines, __ M.J. ___ (N-M Ct. Crim. App. 2022). A petition for writ of mandamus.
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.
During trial, the military judge expressed concern with the term that "A Bad Conduct Discharge shall be adjudged.”
United States v. Soler. Appellant pled guilty to six instances of obstructing justice condensed into one specification. As part of a PTA, the government dismissed two sexual assaults, one indecent recording (his extramarital sex with a junior Soldier), and a general order violation. Appellant was sentenced to six months, RiR, and a BCD. The CA only approved an RiR to E2, per the PTA.
On appeal the Appellant claimed IAC for failing to "present evidence pertaining to his ten years of service in the Army, moving for admission of his enlisted record brief (ERB), or presenting evidence of appellant's combat-related [X] diagnosis."
After reviewing the case and affidavits provided by defense counsel, the court finds no error or prejudice.
The defense had prepared a sentencing case by interviewing witnesses, getting documents, and getting the Appellant's medical records. But the decision was made to give only an unsworn statement. The TC submitted no documents in sentencing and the defense submitted some personal photographs.
Interestingly, the MJ asked the Government if they would provide the ERB, an invitation the TC declined. Slip op. at 2.
Query, could the MJ have ordered the TC to produce the ERB as a court exhibit?
Can the military judge order the Government to produce the whole official service record, subject to objections from defense?
If then introduced, could the TC try to offer aggravation evidence based solely as rebuttal to the ERB?
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.
What was the concern?
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.").
So, in this case,
[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.").
The court did note that even if there was IAC it would not have been prejudicial.
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
In State v. Terrance Police, SC No. 20528, 2022 Conn. LEXIS 123 (scheduled for release May 10, 2022), the issue was whether “touch DNA” was good enough for probable cause to get an arrest warrant. Here is the important part of the decision saying it wasn’t.
[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.
Major Oluwaseye (Mary) Awoniyi, I Do, But Only in a Jurisdiction with Legal Separation: A Proposed Remedy for the Flawed Affirmative Defense in Extramarital Sexual Conduct Cases. No. 6, The Army Lawyer (2021) at 31.
Another case exploring some limits on victim impact statements.
United States v. Halter.
Appellant pled guilty to one specification of assault consummated by a battery, one specification of reckless endangerment, two specifications of assault upon an intimate partner, and an additional specification of assault consummated by a battery. He was sentenced to six months confinement, RiR, a BCD and a reprimand.
After returning from post-trial error corrections the court took up four issues.
(1) MJ erred by letting the victim present improper victim impact information in the victim’s unsworn statement. (No plain error.)
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.
(2) TC committed prosecutorial misconduct during her sentencing argument by arguing that the Appellant should be sentenced based on an uncharged offense.
Trial counsel then argued:
There being no objection the court looked through the plain error lens and found no error, and even if there was there was no prejudice.
Cheers, Phil Cave
No. 22-0129/AR. U.S. v. Nicholas R. St. Jean. CCA 20190663. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
WHETHER THE MILTIARY JUDGE ERRED BY EXCLUDING EVIDENCE UNDER MIL. R. EVID. 412 AND BY PREVENTING THE DEFENSE FROM PRESENTING EVIDENCE OF PARTICIPATION AND CONSENT DURING THE RES GESTAE OF THE CHARGED SEXUAL ASSAULT.
ACCA decided the case of United States v. St. Jean in January this year. Was the issue a Grosty?
The President is a convening authority for courts-martial. UCMJ art. 22(1).
So how do we view this article by Josh Kovensky, talkingpointsmemo.com/muckraker/esper-trump-wanted-to-activate-retired-four-stars-to-court-martial-them-for-disloyaltyEsper: Trump Wanted To Activate Retired Four-Stars To Court-Martial Them For Disloyalty. TPM, May 6, 2022.
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.
No. 22-0065/NA. U.S. v. Willie C. Jeter. CCA 201700248. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
DID THE CONVENING AUTHORITY VIOLATE APPELLANT'S EQUAL PROTECTION RIGHTS, OVER DEFENSE OBJECTION, WHEN HE CONVENED AN ALL-WHITE PANEL USING A RACIALLY NONNEUTRAL MEMBER SELECTION PROCESS AND PROVIDED NO EXPLANATION FOR THE MONOCHROMATIC RESULT BEYOND A NAKED AFFIRMATION OF GOOD FAITH IN SPITE OF A DEFENSE OBJECTION?
NMCCA's opinion in United States v. Jeter, __ M.J. ___ (N-M Ct. Crim. App. 2021).
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