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CAAFlog

Marine A--weekend international court-martial trivia

7/29/2022

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Marine A, outed. Throughought his court-martial a British Marine accussed of murder downrange was called Marine A, and his co-accused's were Marines B., C., D., and E.. Marine A's name became public after his conviction, but not the others.
Airing on Channel 4 this Sunday is War and Justice: The Case of Marine A – a documentary special looking at Alexander Blackman, the first British soldier to be convicted of murder on a foreign battlefield since World War II.
​
Known as Marine A before an anonymity order was lifted, Blackman was originally sentenced to life in prison after killing an injured Afghan insurgent in 2011, which was recorded by a fellow Marine's helmet camera.
Lauren Morris, War and Justice: The Case of Marine A true story – where is Alexander Blackman now? July 28, 2022.

British courts, inlcuding courts-martial can grant anonimity, sometimes called name suppression, to an accused, just as can be given to alleged victims. The authority comes from statute and extends to the press and media. New Zealand has something similar. Rule 153, Armed Forces (Court Martial) Rules, United Kingdom (2009) (“The court may give leave for any name or other matter given in evidence in proceedings to be withheld from the public.”). See also, Memorandum 11. Practice in Service Courts Collected Memoranda, Office of the Judge Advocate General (United Kindgom, (1 Sept. 2016); Fiona Jackson, What’s in a Name? Name Suppression and the Need for Public Interest, Research Paper Law & Social Policy, Victoria Univ. of Wellington (New Zealand) 2005 (discussing “name suppression” generally).

"The [CAAF] has allowed a caption that described a writ petitioner only as a Navy judge advocate, in order to avoid potential reputational injury. Navy Judge Advocate v. Cedarburg, 12 M.J. 315 (C.M.A. 1981) (mem.);" see also, Doe v. Commander, Naval Special Warfare Command, 60 M.J. 455 (C.A.A.F. 2005) (mem.) and other cases discussed in para. 8.03[3], Fidell, Eugene R.; Fissell, Brenner M.; Sullivan, Dwight H.. Guide to the Rules of Practice and Procedure for the United States Court of Appeals for the Armed Forces.
Whilst the charges against Marines D and E were dropped, Marines A (Blackman), B and C pleaded not guilty and in October 2012, an interim order prohibiting the identification of all five Marines was made on the grounds that there was "a real and immediate risk to their lives".
​
In November 2013, the Board of the Court Martial (sic) found Marine A guilty of murder but acquitted Marines B and C.
. . . 
In May 2014, the Court Martial Appeal Court upheld Blackman's life sentence but reduced his minimum term to 10 years. This was due to Blackman having "an outstanding service record" and "the effects on him from the nature of the conflict in Afghanistan" the most serious of which being "stress", according to the judgment.
. . . 
In March 2017, the Court Martial Appeal Court reduced Blackman's conviction to manslaughter on the grounds of diminished responsibility, with it being revealed at the hearing that Blackman had a "recognised mental illness" at the time of the shooting, 
BBC News reported.
Blackman was released in 2917 and later wrote an autobigpraphy, with a forward by Frederick Forsyth--Marine A: The Truth about the Murder Conviction. He says,
'This book chronicles my young life, my recruitment and training, my first deployments, and then my experiences in the Middle East, where I fought first in Iraq, and later completed two tours of duty in Helmand, Afghanistan - before finally confronting the final moment of my 2011 tour, and the killing of the Afghan insurgent which led to my conviction for murder.
​ 

'I confront this moment in a spirit of total honesty, chronicling the weeks and months of a hellish tour that led up to it, the mental frailties the tour exposed - and, without seeking to make excuses, reclaim at least some of that experience for myself. 

'This is a searingly honest look at the brutal realities of life in the military.'
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Judge Maggs Loses His Co-Professor

7/28/2022

 
"The GW Hatchet, a student newspaper, first reported Thomas’s withdrawal from the fall teaching assignment Wednesday, citing an email that his longtime co-teacher, Judge Gregory E. Maggs of the U.S. Court of Appeals for the Armed Forces, sent to students enrolled in the class.

'Unfortunately, I am writing with some sad news: Justice Thomas has informed me that he is unavailable to co-teach the seminar this fall,' Maggs wrote, according to the Hatchet. 'I know that this is disappointing. I am very sorry.'

...

​Maggs, a former clerk for Thomas and for retired associate justice Anthony M. Kennedy, has told students the class will go forward. “The seminar has not been canceled but I will now be the sole instructor,” Maggs said in the email the Hatchet obtained. “For those of you still interested in taking the course, I assure you that we will make the best of the new situation.”"

​Full story here.

Some context and opinion:
The GW law administration should be credited for its position announced earlier: “Just as we affirm our commitment to academic freedom, we affirm the right of all members of our community to voice their opinions and contribute to the critical discussion that are foundational to our academic mission.” -BF

Hockenberry Wins Evidentiary Hearing in Defamation Suit

7/27/2022

 
Link below.
010110716126.pdf
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Court of Appeals for the Armed Forces

7/26/2022

 
No. 22-0193/AF. U.S. v. Anthony A. Anderson. CCA 39969. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
 
WHETHER APPELLANT WAS DEPRIVED OF HIS RIGHT TO A UNANIMOUS VERDICT AS GUARANTEED BY THE SIXTH AMENDMENT, THE FIFTH AMENDMENT'S DUE PROCESS CLAUSE, AND THE FIFTH AMENDMENT'S RIGHT TO EQUAL PROTECTION.
 
No. 22-0205/AF. U.S. v. Andrew Y. Veerathanongdech. CCA 40005. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
 
WHETHER THE MILITARY JUDGE'S FAILURE TO INSTRUCT THE PANEL THAT A GUILTY VERDICT MUST BE UNANIMOUS WAS HARMLESS BEYOND A REASONABLE DOUBT.

Because CAAF has granted on the issue, the Appellants have a path to the Supremes if the CAAF decides for the Government.

Navy-Marine Corps Court of Criminal Appeals

7/24/2022

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Ali pled guilty to indecent visual recordings and possession of CP. He was sentenced to 48 months, RiR, and a DD.

This is a "straddle" case where his primary appellate issue was IAC " for failing to adequately explain Appellant’s options regarding sentencing procedures and for advising Appellant to elect sentencing procedures in accordance with rules implemented pursuant to the Military Justice Act of 2016 (MJA 16)[.]"
 Appellant claims that had he been better informed about the MJA 16 sentencing procedures election, he would not have agreed to an MJA 16 plea agreement even if it would have meant settling for a PTA with a higher possible sentence limitation. He asserts that the outcome would have been different had he elected pre-MJA 16 sentencing procedures because he could have fared better in sentencing. 
The court rejects the argument based partly on it being speculative and because of the declarations submitted to the court by the defense counsel explaining their advice and reasoning for their recommendation.
There is nothing in the record to indicate that but for his counsels’ alleged error, Appellant would not have pleaded guilty and would have insisted on going to trial.
​. . . 
​Finally, in focusing narrowly on his own desires in the plea negotiations, Appellant overlooks that there was another party involved in the negotiations—the convening authority. On the one hand, Appellant’s main concerns were to minimize confinement and to preserve his retirement eligibility. On the other hand, the convening authority desired a minimal term of confinement and no protection from a punitive discharge. Hired with the primary goal of successfully negotiating a plea agreement, and reminded that the former CDC had been fired for his inability to secure one, Appellant’s CDC sought the most favorable terms in the back-and-forth negotiations with the convening authority. Recognizing the futility of attempting to convince the convening authority to protect Appellant from a punitive discharge, CDC leveraged the dishonorable discharge term to reduce Appellant’s exposure to confinement. Negotiating the confinement cap became a key issue for the parties. Appellant’s initial proposed plea agreement offered 60 days of confinement with a confinement cap of 48 months, while the convening authority proposed a cap of 72 months. Ultimately the parties settled on 55 months. Seen in the light of the previous failed plea negotiations, the ultimately successful multi-week plea negotiations, and the convening authority’s own goals, we are convinced that Appellant’s TDC discussed the MJA 16 sentencing procedural framework with him, despite his statements to the contrary.
The court rejected Appellant's claim that the sentence was unreasonable.
​Appellant’s offenses were serious and had lasting impacts on the victims. He admitted to having secretly recorded his undressed fellow shipmates over a period of months while they were living in the very close confines of a deployed submarine. Appellant unlawfully made videos capturing at least 40 Sailors—13 of whom were identified by NCIS—which he filed away for personal viewing and maintained for nearly four years until their discovery by law enforcement. Multiple victims testified about the impacts of Appellant’s offenses, describing persistent physical reactions when considering the crime, loss of trust, and feeling “disgusted.”47 Additionally, Appellant admitted to having purchased thousands of images and videos of children engaged in sexual acts, in which over 350 victims were identified by the National Center for Missing and Exploited Children. Appellant sought out and paid for these images and videos, and then kept them for years on multiple electronic devices until they were seized by law enforcement. In mitigation, Appellant presented evidence of his long naval career, acceptance of responsibility, expressions of remorse, and efforts at rehabilitation. Nonetheless, . . .
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Navy-Marine Corps Court of Criminal Appeals

7/22/2022

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United States v. Miller, __ M.J. ____ (N-M. Ct. Crim. App. 2022), is a case exploring who is a "victim" and so who can give a victim impact statement. Did the MJ
abuse[] his discretion when he permitted, over Defense objection, the mother of a deceased Sailor to make a victim impact statement when Appellant was not found guilty of an offense relating to the deceased Sailor.

Appellant’s convictions arise out of an incident occurring aboard Naval Station Great Lakes in which a fellow Sailor, Fire Controlman Seaman Recruit [FCSR] Echo,4 died in his barracks room of a drug overdose. An investigation revealed that the day prior to FCSR Echo’s death, he and Appellant traveled to Chicago where they obtained heroin and drug paraphernalia. They used the heroin in Chicago and then returned to the installation where they continued to use the drug. FCSR Echo was found dead by his roommate the following morning. During the investigation, Appellant was interviewed by the Naval Criminal Investigative Service [NCIS] and made false statements regarding the circumstances surrounding FCSR Echo’s death. Appellant was charged with involuntary manslaughter, reckless endangerment, obstructing justice, wrongful interference with an administrative proceeding, wrongful introduction of a controlled substance, violation of a lawful general order, willful disobedience of a superior officer, wrongful drug use, and making false official statements. Before trial, he entered into a pretrial agreement wherein he agreed to plead guilty to wrongful drug use, violating a lawful general order by possessing drug paraphernalia, and making false official statements, in exchange for the convening authority referring his case to a special court-martial.
The finding of victim status flows from the nature of the criminal conduct. There seems to be a sufficient nexus between what the appellant did and the resulting death of his co-actor.
The circumstances of those offenses involved a joint enterprise between Appellant and FCSR Echo to obtain, purchase, and use heroin together. Appellant bought the drug paraphernalia and provided the needle FCSR Echo used to inject the heroin that ultimately caused his death. As such, we determine that the psychological harm FCSR Echo’s death caused to FCSR Echo’s mother directly arose from the offenses of wrongful drug use and possession of drug paraphernalia of which Appellant was found guilty.
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Army Court of Criminal Appeals

7/21/2022

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In Harris, the appellant pled guilty to a larceny and a robbery and was sentenced to sixteen months, RiR, and a BCD. The issue, a common one, is whether the MJ should have recused.
Appellant was initially charged with, among other things, robbing another Soldier of $55,000. He negotiated a plea agreement, which included his promise to request trial by military judge alone. Appellant tried to plead guilty in accordance with the agreement, but he was not provident to all aspects of the robbery charge. The convening authority withdrew from the agreement, and the military judge said of future proceedings:

          [M]ore than likely I am going to detail a different judge tothat trial. ... [T]he only reason I wouldn't do that is if the defense affirmatively waives any issues regarding me
remaining as the military judge on this case. I certainly think I can be impartial, and won't be [a]ffected by . . .
The Appellant got himself a new deal and appeared before the same judge for the GP. The MJ said that he'd still be the judge and the defense challenged for implied bias based on the prior attempted guilty plea and associated providence inquiry. The MJ later asked the Appellant specifically if he was voluntarily proceeding MJA and with him still the MJ--to which the Appellant said yes. The court looks at three points to affirm.

1. An MJ has the discretion and often uses it to stay on a MJA case when she has previously rejected the providence of a guilty plea. "United States v. Winter, 35 M.J. 93 (C.M.A. 1992), is instructive on this point, for our superior court concluded that a military judge did not err in presiding over a contested bench trial after rejecting an improvident plea in the case."

2. There is no evidence of record that the forum choice was involuntary. "[H]is decision to enter a plea agreement, or his decision to remain bound by the plea agreement. These decisions are reserved to an accused at a court-martial; they cannot be outsourced to defense counsel. Florida v. Nixon, 543 U.S. 175, 187 (2004). The military judge specifically asked appellant whether his forum choice was voluntary, and he responded that it was. The military judge also asked appellant, Did you enter the agreement of your own free will?" Appellant responded, "Yes, Your Honor." Based on the circumstances, we do not doubt the voluntariness of any of appellant's decisions."

While not stated, the sentence seems reasonable for robbing another Soldier of $55,000.00, so arguably the MJ was not affected by the prior failed GP.
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Air Force Court of Criminal Appeals

7/20/2022

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Velasquez pled guilty to two assaults consummated by a battery upon two women by touching their buttocks with his hand, and one assault consummated by a battery upon his spouse, on divers occasions, by touching her legs, back, and buttocks with his hand. He was sentenced to six months, TF, RiR, a BCD, and a reprimand.

On appeal he complains the sentence is too severe and accuses his defense counsel of failing to “request disapproval of the adjudged forfeitures, any deferments, or a waiver of automatic forfeitures from the convening authority.”

The court finds no error. As to the IAC, there was no evidence presented to AFCCA that Appellant personally requested any clemency or that he asked his counsel to do that and they didn't.

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Court of Appeals for the Armed Forces

7/20/2022

 
In Palacios-Cueto, the CAAF finds no IAC during the sentencing case and the erroneous arguments of trial counsel were harmless.
Appellant faults his civilian defense counsel and trial defense counsel (hereinafter referred to collectively as defense counsel [, see, e.g., United States v. Boone, 42 M.J. 308 (C.A.A.F. 1995). And see United States v. Golston, 53 M.J. 61, 67 (C.A.A.F. 2000) (Gierke, J., concurring) (this team approach is equally applicable to the prosecution.)] for several deficiencies: failing to admit evidence of a potentially mitigating matter during sentencing; not advising him to address this and two other potentially mitigating matters in his unsworn statement; and not requesting tailored instructions regarding these matters. 
. . . 

[Appellant alleges] trial counsel committed prosecutorial misconduct when they stated that they represented ‘the pursuit of justice’ and argued justice would only be served if appellant was convicted and adjudged a sufficient punishment.” Appellant contends that circuit trial counsel and assistant trial counsel (hereinafter referred to collectively as trial counsel) made improper statements and may have caused the court-martial to find him guilty and to sentence him on considerations beyond the admitted evidence​.
In the AFCCA opinion, decided 2-1, we find the IAC allegations were broader than those taken up by CAAF: issues with a suppression motion, instructions, defense argument on findings, and discovery. The AFCCA majority determined there was no prejudicial IAC. Judge Meginley, dissenting, would have found "counsel [were] ineffective in failing to present an effective sentencing case." As to the trial counsel's erroneous arguments, Judge Meginley "believe[s] those arguments materially prejudiced Appellant, as there is a reasonable probability that the outcome of the proceeding would have been different had trial counsel not committed error." He ended, 
​In his closing argument, trial counsel admonished the members, “You will have the ultimate decision on . . . whether justice will be served, or whether the accused will be acquitted,” as if to say an acquittal would not be justice. Civilian defense counsel responded these are “words that should never come out of a prosecutor’s mouth;” I agree. The majority commented that “‘Justice’ must be tethered to the evidence and the burden of proof lest it be confused with justice for the victim or society or the military justice system.” Unfortunately for Appellant, looking at his case as a whole, I question whether “justice” has been served. I respectfully dissent.
From CAAF,
[S]ix [of eight] references to justice are not so easily dismissed. If we were to review these other statements in isolation, each of them would raise significant concerns. The members might have understood the twice-repeated statement during voir dire—“I’m here . . . in the pursuit of justice in this case”—to imply that Appellant’s defense counsel were not there to pursue justice. The members might have understood trial counsel’s request in his opening statement—“repair the little that can be repaired and bring justice to [A1C M.T.] by finding the accused guilty”—to mean that members should focus on providing relief to A1C M.T. rather than assessing the evidence. The members similarly might have understood trial counsel’s first remark during his findings argument—“you will have the ultimate decision . . . whether justice will be served, or whether the accused will be acquitted”—to mean that they should focus on justice rather than on the evidence. And both this remark and the other statement during findings ignore the Government’s burden of proving guilt. Finally, the second mention of justice during sentencing argument—“[A] sufficient punishment . . . will bring some form of closure to [A1C M.T.] for all that she has . . . endured in this year-and-a-half nightmare”—may have misguided the members.
The CAAF, essentially agreeing with the Government's arguments, finds there is no prejudicial error.
The Government, however, makes three responses. First, the Government argues that this Court should not view trial counsel’s statements in isolation, but instead under Donnelly, 416 U.S. at 637, must view them in context. Second, the Government argues that, in viewing the six problematic statements, we should not ascribe to them the “most damaging meaning . . . from the plethora of less damaging interpretations.” Id. at 647. Third, the Government argues that even if some statements were improper, the AFCCA was still correct in concluding that any error was harmless under the Fletcher factors. 
  • CAAF agrees with AFCCA that "the misconduct was “moderately severe.”

But "not as severe as the misconduct that this Court unfortunately has seen in other cases. See, e.g., United States v. Norwood, 81 M.J. 12, 21 (C.A.A.F. 2021); United States v. Voorhees, 79 M.J. 5, 9 (C.A.A.F. 2019); United States v. Sewell, 76 M.J. 14, 17–19 (C.A.A.F. 2017); United States v. Frey, 73 M.J. 245, 249 (C.A.A.F. 2014); see also Berger v. United States, 295 U.S. 78, 84 (1935)."
  • There we no objections, although, as some of us do from time to time, "counsel also effectively responded to most of what trial counsel said, especially with respect to the suggestion that justice required a finding of guilt."
  • "[E]ffective curative measures were taken. The military judge gave the members complete and correct instructions and informed the members that these instructions should control their deliberations."
  • It looks like the members may have had residual doubt or at least there was "a sentence that does not appear to have resulted from inflamed passions."

Yes, I'm with Judge Meginley on this one as to the arguments. I have in mind several points on this, which we've discussed before.

  • ​Diamond Shari Seidman, and Neil Vidmar, Jury Room Ruminations on Forbidden Topics, 87 VA. L. REV. 1857 (2001); Abraham P. Ordover, Balancing the Presumptions of Guilt and Innocence: Rules 404(b), 608(b) and 609(a), 38 EMORY L.J. 135, 175-78 (1989) (discussing studies on curative instructions and noting that “[t]he empirical research demonstrates that jurors are deeply affected by prejudicial comments and evidence and that curative instructions tend to increase the prejudice rather than decrease it. Moreover, the research shows that the impact is much greater in weak cases than in strong ones.”).
  • The Navy-Marine Corps Court of Criminal Appeals has observed that “it will not indulge in the naïve assumption that all prejudicial effects can be overcome by instructions to the jury.”  United States v. Knox, 46 M.J. 688, 691 (N.M. Ct. Crim. App. 1997), see also, Krulewitch v. United States, 336 U.S. 440, 453 (1949) (the idea that prejudicial effects can be overcome by a jury instruction is "unmitigated fiction"); Nash v. United States, 54 F.2d 1006, 1007 (2d Cir. 1932) (limiting instructions are "a mental gymnastics which is beyond, not only [the jury's] power, but anybody else's.").
  • ​Lisa Eichorn, Note, Social Science Findings and the Jury’s Ability to Disregard Evidence Under the Federal Rules of Evidence, 52 LAW & CONTEMP. PROBS. 341 (1989).
  • J. Alexander Tanford, The Law and Psychology of Jury Instructions, 69 NEB. L. REV. 71 (1990).
  • Peter Meijes Tiersma, Reforming the Language of Jury Instructions, 22 HOFSTRA L. REV. 37 (1993).
  • Daniel M. Wegner, Ironic Processes of Mental Control.  101 PSCH. REV. 34 (1994).

Dial in for update (as of July 20, 2022)

7/20/2022

 
The ACCA decided United States v. Pritchard & Dial (RPI). The court granted the Government its requested relief.
We now have a writ-appeal petition in Dial v. United States & Pritchard, docketed with CAAF on July 13, 2022.

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