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.
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, 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".
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.
"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
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.
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.
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, . . .
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.
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.
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:
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.
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.
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.
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.
[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.
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)."
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.
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.
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.