United States v. Donley

(2) whether the military judge committed prejudicial error by directing the members, without proper instruction, to review their completed findings worksheet and discuss whether six of the seven remaining members agreed on their findings when the panel president was excused before announcement of the findings[.]

With regard to the timing of the deliberations, voting, and announcement on the findings, this case presents a cascade of circumstances relatively unforeseeable outside a global pandemic. In a matter of hours, three trial counsel were rendered unavailable to proceed due to illness in the middle of member deliberations. Exacerbating the situation, the court president was excused due to his unavailability/illness after findings had been reached, but before those findings were announced. To say that these circumstances are rare is a dramatic understatement. Despite the rarity of the circumstances, the Rules for Courts-Martial provide for the proper way ahead. The military judge did not adhere to the applicable rules and committed error. Where the military judge went astray was after the president had been excused. The military judge, albeit with trial defense counsel’s affirmative request to do so, erred when he instructed the members as follows:

I’m going to send you back into the deliberation room with the findings worksheet and instruct you to review your findings. In assessing whether or not reconsideration of the verdict is necessary, the panel should ensure that six of the seven remaining members concurred in a vote of guilty for any specification for which your original votes resulted in a finding of guilty.

​At the time the military judge provided this instruction, the members had reached their findings. Both the military judge and trial defense counsel were under the impression that because the number of members had been reduced from eight to seven, that before they could announce their findings, six of the remaining members must have concurred in any finding of guilty. We disagree. The initial vote was final absent a request for reconsideration. We emphasize also that the excusal of a court member after a valid vote does not ipso facto require that a military judge instruct the court members as to “reconsideration” procedures. 

Carlisle v. United States

Appellee is charged with one specification of possession of child pornography, one specification of viewing child pornography and one specification of distributing child pornography. The Government alleges that Appellee possessed, viewed, and distributed sexually explicit and obscene anime videos and images. Pretrial, Appellee moved to exclude 33 videos and images the Government contends form the basis of the charged offenses. The military judge granted this motion and excluded these charged videos and images ruling that they were irrelevant because these videos and files did not meet the definition of child pornography in accordance with Article 134, UCMJ. The Government appeals the military judge’s ruling excluding the 33 videos and images. They argue that these anime videos and images do meet the definition of child pornography in accordance with Article 134, UCMJ. We hold that whether the videos and images meet the definition of child pornography as set forth by the President is a factual question to be resolved by the factfinder at trial. Therefore, the military judge erred when he failed to apply the relevance standard as set forth in Mil. R. Evid. 401, usurped the factfinder’s role, and excluded this evidence.

United States v. Malone

[I]t does not serve the ends of justice to allow appellant to deliberately decline to make a multiplicity challenge, even when directly asked by the military judge i f he had any such motions, at a time when the convening authority could still withdraw from the agreement; and instead wait to raise such a challenge for the first time on appeal after he has reaped all of the benefits and the convening authority can no longer withdraw. 
. . . 
This is especially true given that appellant is now contending that the domestic violence specifications at issue were so facially defective as to constitute plain error.

The constitutional law of confessions has a critical blind spot. In theory, it serves two interests. It protects the autonomy of suspects by stipulating that they can be questioned while in custody only with their consent. And it restrains official misconduct by forbidding interrogation methods that overbear a suspect’s will. Even if the law adequately safeguards those interests, something is missing: reliability. As false confessions emerge as a major source of wrongful convictions and as social scientists expose how standard interrogation tactics prompt innocent people to confess, the Supreme Court and conventional wisdom insist that the reliability of confessions is not a constitutional concern.

The Supreme Court and conventional wisdom are wrong. Inattention to reliability is a jurisprudential oversight, not a feature of constitutional design. The problem is that the Court and commentators have neglected the part of the Constitution that unabashedly curates prosecutorial evidence: the Confrontation Clause. For much of our constitutional history, that omission could be excused, as the Confrontation Clause was a sleepy corner of the Sixth Amendment. Twenty years ago, in Crawford v. Washington, the Supreme Court enlivened it.
​
This Article shows that a straightforward reading of Crawford, combined with a smattering of legal history, yields a simple but transformative rule: If police obtain a confession through psychologically manipulative tactics that induce “fear” or “hope,” the confession should be inadmissible unless the defendant testifies. Eighteenth-century jurists and modern social scientists agree that such tactics lead to unreliable confessions, yet they remain a staple of modern American interrogations. That would change if courts recognized the Confrontation Clause’s capacity to regulate confessions.

This is the proverbial "paper" urinalysis case, but without the paper.

the government asked its expert, "[W]hat is GC-MS?" The expert answered, "Gas chromatography mass spectrometry....[i]t is the confirmation, the one that looks for the fingerprint of the drug." Beyond this metaphor the expert offered virtually no information about the test itself, whether it is regarded as scientifically sound, and whether it was conducted in accordance with prescribed procedures in this case.2 The expert did testify the metabolite from the sample exceeded the cutoff level and did not occur naturally in the body, but there was no explanation of the cutoff level's relevance, or any other evidence indicating test controls for the possibility of innocent ingestion.

The government's case also omitted the test results themselves. Instead, the prosecution asked only for the expert's "opinion based off of your review of the results." The expert responded, "It was positive for BZE at 295 nanograms per milliliter." We are unfamiliar with any authority supporting the government's contention that an expert opinion alone is sufficient to prove wrongful drug use.

United States v. Pettry

Sentenced on 2 August 2022, entry of judgment on 27 Sep 2022. The trial counsel completed the precertification review on 3 Apr 2023. Military judge's authentication on 11 Apr 2023. The government then forwarded the record to the court without any explanation for the post-trial processing delay. The record was docketed at this court on 28 April 2023, 269 days after adjournment and 213 days after the entry of judgment. The government obtained and requested to attach a post-trial delay memo dated 24 October 2023, but that motion was denied.

In determining whether relief is appropriate, this court considers the totality of the circumstances "balancing the interplay between factors such as chronology, complexity, and unavailability, as well as the unit's memorialized justifications for any delay." See United States v. Winfield, 83 M.J. 662, 666 (Army Ct. Crim. App. 2023).
. . .
In Winfield, this Court reinforced the requirement to provide an explanation, stating "we will scrutinize even more closely the unit-level explanations for post- trial processing delays." 83 M.J. at 665.

After reviewing the entire record and considering the totality of the circumstances, similar to our decision in United States v. Bionaz, the unexplained 188 days between entry of judgment and the trial counsel precertification review was excessive [a]ccordingly, we find that 15-day reduction to the confinement sentence is appropriate.

United States v. Avellaneda,
__ M.J. ___ (N-M. Ct. Crim. App. 2024)

During his plea colloquy, stated that on 25 January 2021 during this evolution, he negligently failed to fully inspect several midshipmen candidates (by not looking directly at them during the inspection). In certain other cases, he failed to document on a spreadsheet the new tattoos that he had observed during the inspection. Later, Appellant became aware that an investigation into unauthorized tattoos had commenced and a “Body Alteration Inspection” was imminent. One of the midshipmen candidates who Appellant had inspected had in fact obtained a large tattoo that ran the entire length of his back. Appellant falsely recorded that the midshipman candidate had not obtained any new tattoos. This midshipman candidate approached Appellant and disclosed to him that he was planning to provide an altered (backdated) photograph intended to fool the investigator into thinking that the new tattoo was, in fact, not new. Appellant encouraged him to provide this doctored photograph to the investigator as evidence.

As the MJRG explained, there are two types of plea agreements in federal practice related to sentencing. Under Rule 11(c)(1)(B), or a “B plea,” a prosecutor agrees to make a recommendation to the judge that a specific sentence or sentencing range is appropriate. But under a “C plea,” the judge is bound by the parties’ agreement to a specific sentence or sentencing range. And under a “C plea,” the judge has only three options: (1) accept the agreement and adjudge the sentence (or within the limits of the sentencing range) agreed to by the parties; (2) reject the agreement entirely; or (3) defer the decision until after review of the presentence report.

Congress ultimately adopted the MJRG’s proposal for Article 53a, UCMJ, in the MJA 16. As a result, while military servicemembers continue to be able to bargain for how the convening authority will dispose of one or more charges and specifications, they may also now bargain for specific limitations on the sentence that may be adjudged for one or more charges and specifications just like defendants in federal court.