News for today
Air Force Times is reporting that Major General Cooley is now Colonel Cooley (Ret).
https://www.courtlistener.com/docket/63107798/32/1/mata-v-avianca-inc/ is the link to the affidavits in which the counsel admits to using ChatGPT for case research.
Some of us have tinkered with ChatGPT for briefs---um, not a good idea.
United States v. Grijalva
Who said that the "service connection" requirement is dead after Solorio. If dead, Congress may have and the CGCCA has resurrected it for a specific offense--something that Congress could do. Grijalva was convicted of knowingly and wrongfully, without specific consent, sharing nude pictures in fake Tinder account.
Grijalva hacked into a friend of a friend's Snapchat account, downloaded nude and other pictures of the friend. He then created a fake Tinder account with the friends name and used her pictures. He promised a meeting with "her" and in the process made $200.00 based on the solicitation.
He was charged with an unenumerated offense under Article 134(2). On appeal, he alleged that the charge and specification was preempted by Article 117a. CGCCA disagreed.
Appellant was convicted of an unenumerated specification under Article 134, UCMJ, alleging: (1) that he knowingly, wrongfully, and without explicit consent broadcast an intimate visual image of Ms. B.C., who is identifiable from the visual image or from information displayed in connection with the visual image when he knew or reasonably should have known that the visual image was made under circumstances in which Ms. B.C. retained a reasonable expectation of privacy regarding any broadcast and when he knew or reasonably should have known that the broadcast of the visual image was likely to cause harm, harassment, or emotional distress for Ms. B.C. or to harm substantially Ms. B.C. with respect to her safety, business, calling, career, reputation, or personal relationships; and (2) that, under the circumstances, Appellant’s conduct was of a nature to bring discredit upon the armed forces. This embraced all but two of the elements of wrongful broadcast of an intimate visual image under Article 117a, UCMJ: (1) that the intimate visual image involves a person who is at least 18 years of age at the time the intimate visual image was created; and (2) that the accused’s conduct, under the circumstances, had a reasonably direct and palpable connection to a military mission or military environment.
The court rehearses the statutory language and legislative history of Article 117a. In doing so, the court concludes that the Article is limited to situations where the victim is another servicemember or veteran.
The issue arises over the interpretation of "(4) whose conduct, under the circumstances, had a reasonably direct and palpable connection to a military mission or military environment," in the statute.
The statutory language makes clear that Article 117a is tailored to address nonconsensual sharing of intimate images of adults that, “under the circumstances, had a reasonably direct and palpable connection to a military mission or military environment.” Article 117a(a)(4). Legislative history shows that the specific statutory purpose for doing so was to target the sharing/broadcasting of intimate images of servicemembers and veterans without their permission.
In Grijalva, the victim was a civilian.
With that in mind, the court finds no difficulty in deciding against Grijalva on the preemption argument.
But I think the question to be asked of CAAF is more nuanced. Is it arguable that "whose conduct, under the circumstances, had a reasonably direct and palpable connection to a military mission or military environment," is a blending of the second element of an Article 134(1) or (2) offense--conduct prejudicial to good order and discipline and/or service discrediting? The full text of Article 117a states
a) Prohibition.-Any person subject to this chapter-
The opinion notes that a 2017 DoJ recommended (ltr at 10) the additional element to address First Amendment concerns. DoJ cites to United States v. Wilcox, 66 M.J. 442, 449 (C.A.A.F. 2008). And as part of the discussion suggests that an enumerated offense under Article 134 would be appropriate. That's not in the 2019 manual.
United States v. Figuereo
Figuereo presents a case where the court found a valid claim of ineffective assistance of counsel based on a conflict of interest created by the lead military defense counsel. The court did, however, limit the IAC to the sentencing case. The court also set-aside an enlisted panel's findings of another offense. In reassessment the court set-aside 10 months of confinement (which the appellant had already served by then) and left in place three months of confinement.
a total of 13 months’ confinement, total forfeiture of pay and allowances, and a bad-conduct discharge. The confinement portion of the sentence was segmented. Ten months of the confinement sentence was attributed to the specification of abusive sexual contact, Article 120, UCMJ, and was to run consecutively with the rest of the confinement term (three months) attributed to the other charges and their specifications. For the charges and their specifications to which the Appellant pleaded guilty, the military judge imposed between two and three months’ confinement all to run concurrently with each other.
The facts surrounding the IAC are not pretty, and you should read them for yourself. When done, consider (1) what can and cannot be said to a defense witness about contacting an alleged victim of a sexual assault after that victim has testified, and (2) should you get that wrong how should you go about explaining your actions when they are brought up when trial counsel brings them up as creating a conflict of interest. And in the process avoid getting your name in the court's opinion.
United States v. London
In London, the members convicted the appellant of involuntary manslaughter. The NMCCA finds the conviction factually insufficient.
Appellant argues that the Government failed to prove that he punched Mr. Hotel, that the testimony and forensic evidence failed to prove that Mr. Hotel was punched, and that the forensic evidence showed that Mr. Hotel’s injury was consistent with falling backwards from pulling on Appellant’s sweatshirt rather than being punched.
The case for and against London heavily depended on forensic evidence--pathology and toxicology. There were eyewitnesses, but none could testify to crucial facts against the appellant--none saw appellant punch the victim. Essentially the government was arguing that Appellant did punch the victim which caused the victim to have an "accelerated fall," which caused a skull fracture and, ultimately death. Essentially the defense argued that the victim was pulling on Appellant's sweatshirt so strongly that it caused indicia of strangulation and was so hard it ripped the sweatshirt, and then when the sweatshirt ripped the intoxicated victim fell and struck his head.
The link to the Navy military justice and NMCCA opinions has been updated. The listing of publicly available cases seems to be a work in progress (hopefully the search function will be fixed).
The National Institute of Military Justice is pleased to announce the winner of the 2022 Kevin J. Barry Award.
This award is intended to recognize substantial scholarship from the previous year, and will be evaluated for “excellence in military legal studies,” with the winner selected by a committee of law professors and practitioners.
The winner is:
Professor Saira Mohamed (Berkeley), for her article entitled Abuse by Authority: The Hidden Harm of Illegal Orders. 107 Iowa L. Rev. 2183 (2022).
Prof. Mohamed's piece "argues that international and domestic law should acknowledge [a] superior's order not only as a link to the crimes of the subordinate, but also as an abuse of the superior's relationship of authority over the subordinate."
Given that one of the most distinctive features of military criminal law is its recognition of a limited superior orders defense, this new theoretical framing of unlawful orders makes an important contribution to our field.
May 22nd, 2023
New Article on Fort Hood Report
May 15th, 2023
The new Article 140a requires periodic reports to Congress about the Services' case management systems. NIMJ recently obtained these reports via FOIA. More analysis to follow.
United States v. Kim
Kim is a guilty plea case with an issue as to the providence of one specification. The CAAF affirms the findings of three specifications of sexual abuse of a child and one assault and battery.
The military judge had sentenced the Appellant to a dishonorable discharge, 130 months of confinement, and reduction to grade E-1. The CA abided by the PTA to reduce the confinement to six years.
The CAAF sets aside an Article 134(2) specification that alleged:
that Appellant “did . . . commit indecent conduct, to wit: conducting an internet search for ‘rape sleep’ and ‘drugged sleep,’ and that said conduct was of a nature to bring discredit upon the armed forces.”
CAAF tells us that:
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
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