United States v. Anderson
EMPANELING "FAIR AND IMPARTIAL" MEMBERS: THE CASE FOR INCLUSION OF AN IMPLICIT BIAS INSTRUCTION AT COURTS-MARTIAL
LIEUTENANT COLONEL SUSAN E. UPWARD
Flawed from the Start: Marine Corps Command-Directed Investigations
The court has issued an opinion in Counterman v. Colorado.
From 2014 to 2016, petitioner Billy Counterman sent hundreds of Facebook messages to C. W., a local singer and musician. The two had never met, and C. W. did not respond. In fact, she tried repeatedly to block him, but each time, Counterman created a new Facebook account and resumed contacting C. W. Several of his messages envisaged violent harm befalling her. Counterman’s messages put C. W. in fear and upended her daily existence: C. W. stopped walking alone, declined social engagements, and canceled some of her performances. C. W. eventually contacted the authorities. The State charged Counterman under a Colorado statute making it unlawful to “[r]epeatedly . . . make any form of communication with another person” in “a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person . . . to suffer serious emotional distress.” Colo. Rev. Stat. §18–3–602(1)(c). Counterman moved to dismiss the charge on First Amendment grounds, arguing that his messages were not “true threats” and therefore could not form the basis of a criminal prosecution. Following Colorado law, the trial court rejected that argument under an objective standard, finding that a reasonable person would consider the messages threatening. Counterman appealed, arguing that the First Amendment required the State to show not only that his statements were objectively threatening, but also that he was aware of their threatening character. The Colorado Court of Appeals disagreed and affirmed his conviction. The Colorado Supreme Court denied review.
Thomas Ward Frampton & Brandon Charles Osowski, The End of Batson? Rulemaking, Race, and Criminal Procedure Reform. Columbia L. Rev. forthcoming.
On January 1, 2022, the most radical change to the American jury in at least thirty-five years occurred in Arizona: peremptory strikes, long a feature of American trial adjudication, were abolished. Arizona’s move is part of an important trend (one that has largely escaped scholarly attention): after decades of inaction at the federal level, states have begun experimenting with new ways to counter racial exclusion in the selection of juries. Nearly one-sixth of the country now lives in a jurisdiction where Batson v. Kentucky does not provide the basic framework governing peremptory strikes, and more states are contemplating reforms. Perhaps as noteworthy as the scope of Arizona’s reform is how the state’s abolition of peremptory strikes came about: wielding its rulemaking authority, the Arizona Supreme Court simply got rid of them. Indeed, the court did not even issue an explanation for its new rule, despite the private reservations—disclosed here for the first time—of some justices. Most of the other states’ reforms have followed the same trajectory: rather than announce new constitutional rules through adjudication (or call upon their legislatures to enact new statutes), state supreme courts have exercised their broad quasi-legislative authority to promulgate new rules of criminal procedure.
Matthew Tokson & Michael Gentithes, The Reality of the Good Faith Exception. University of Utah College of Law Research Paper No. 546 (2023).
The Fourth Amendment’s primary remedy is the exclusion of unlawfully obtained evidence at trial. But not every defendant whose rights are violated gets a remedy. The most substantial obstacle for defendants is the good faith exception, which directs courts to admit unlawfully collected evidence if the police can show they relied in good faith on existing authority. If the police rely on a statute that turns out to be unconstitutional, or a warrant or precedent that turns out to be invalid, the evidence they obtain will nonetheless be admitted under the good faith exception. The Supreme Court has justified this doctrine on the grounds that excluding evidence is only worthwhile if it deters misconduct by police officers. When officers rely in good faith on existing authority, the Court has found there is no misconduct to deter, and exclusion is unjustified.
Something for the JSC and chief trial judges to consider? As I was listening yesterday to a federal magistrate judge admonishing the Government to comply with their discovery obligations in our case--I thought maybe the military should look at the practice. And, thanks to PACER, here is the written Order that is routinely given.
In 2020, then-President Donald Trump signed the Due Process Protection Act into law. In response, the EDVA adopted an oral admonishment in public and the above-written Order for posterity. It is possible that the adoption of this practice might be required under Mil. R. Evid. 1102, and certainly Article 36 suggests adopting the practice. The language of the Act does not include courts-martial or allude to "federal courts." As one writer observes,
[T]he developing practices in other federal districts suggest that the DPPA provides the opportunity for courts to go beyond a perfunctory reminder, if inclined. In the Southern District of New York, for example, Judge Laura Taylor Swain has crafted a Rule 5(f) order that highlights the key holdings of Brady and its progeny, carefully outlines the government’s disclosure obligations, and states explicitly the potential consequences of a failure to comply. See United States v. Shalon, No. 15 CR 333, 2020 WL 6873447 (S.D.N.Y. Nov. 23, 2020). While the court did not impose specific deadlines for disclosure, it did state plainly the requirement that prosecutors disclose to the accused material, favorable evidence “promptly after its existence becomes known” to the government, regardless of whether the government credits it. Id. The order further reminded prosecutors that, even in the context of a guilty plea, Brady evidence must still be disclosed in some circumstances, and encouraged the government to seek in camera review of materials for which disclosure may run afoul of a substantial government interest – such as witness safety, victim rights, or protection of law enforcement sensitive techniques. Id. Finally, the court cautioned that it may impose a wide variety of consequences on prosecutors for failures to comply with its order, including evidentiary sanctions, dismissal of charges, and vacatur of a conviction after trial or a guilty plea. Id.
(Emphasis added.) A writer at Steptoe observes,
The Act was passed with broad bipartisan consensus, by unanimous consent in the Senate and by a voice vote in the House of Representatives.
(Emphasis added.) The Steptoe piece offers some hints to the defense.
In re B.M., __ M.J. ___, No. 202300050 (N-M. Ct. Crim. App. Jun. 14, 2023).
In this petition for a writ of mandamus and MJ recusal, the court addresses several issues related to Mil. R.Evid. 513 and the abatement of proceedings where the rule prevents defense access to otherwise discoverable information.
The real party in interest [RPI], Lieutenant Commander [LCDR] Dominic R. Bailey, U.S. Navy, is charged in the general court-martial, United States v. LCDR Dominic R. Bailey, U.S. Navy, with violating Articles 120 and 128, UCMJ. Pursuant to facts that form the basis of this Petition for Extraordinary Relief, the military judge abated the proceedings.
The defense requested,
(11) Any evidence that any potential witness sought or received mental health treatment, including specifically the mental health treatment records of the complaining witness [Petitioner] including records of any diagnosis or prescribed medications before or after the offense.
Trial counsel demurred on the basis of relevance or alternatively, TC would produce if the complaining witness produced them to TC. The defense filed a motion to compel. The military judge held a hearing and ordered the complaining witness to testify about
her mental health treatment, specifically, names, dates, and treatment facilities she used before, during, and after the alleged assaults.
The military judge ordered production to her. In the written order, reviewed and "approved" by SVC, the military judge ordered
[T]he appropriate records custodian at the [mental health clinic] SHALL deliver to the Court a copy of all written mental or behavioral health records for [Petitioner] from 15 January 2022 to the present ONLY to the extent those records reflect:
(Bolding and underlining in the original.)
Unfortunately, the MJ was provided more information than was requested and which shouldn't have been disclosed. The MJ read everything provided and in the process she found information helpful to the defense.
Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces: Report on Reforming Pretrial Procedures and Establishing Uniform Prosecution Standards, Recommendations for Article 32, UCMJ, and the Secretary of Defense's Disposition Guidance. June 2023.
Yesterday Deputy Secretary of Defense Kathleen H. Hicks issued this memorandum setting out steps to be evaluated with a view to reducing racial disparities in the investigative and military justice systems.
The 17 recommendations are based on the work of a DoD Internal Review Team, and will now be reviewed by cognizant offices within the department. The IRT's report can be found here.
Note the bit about legal representation at summary court-martial. Generally, a SCM where there was no counsel during the trial is an administrative punishment and not a conviction.
There has been a question about the most recent amendments to the Manual.
Here is a link to those affecting offenses committed after 26 January 2022.
These amendments shall take effect as of the date of this order, subject to the following: (a) Nothing in these amendments shall be construed to make punishable any act done or omitted prior to the date of this order that was not punishable when done or omitted. (b) Nothing in these amendments shall be construed to invalidate any nonjudicial punishment proceeding, restraint, investigation, referral of charges, trial in which arraignment occurred, or other action begun prior to the date of this order, and any such nonjudicial punishment, restraint, investigation, referral of charges, trial, or other action may proceed in the same manner and with the same effect as if these amendments had not been prescribed.
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
Amendments to UCMJ Since 1950 (2024 ed.)
Amendments to RCM Since 1984 (2024 ed.)
Amendments to MRE Since 1984 (2024 ed.)
Army Crim. L. Deskbook
J. App. Prac. & Pro.