VanLandingham Comments on New Regs

The biggest obstacle at that point to reorienting the case to a potentially winning argument is a reply brief should only respond to an opponent’s arguments and not launch new ones. New arguments raised for the first time in a reply brief are often forfeited and potentially waived. The terms forfeited and waived have different meanings for an appellate court. Forfeiture generally means a failure to make the timely assertion of a right or argument. Waiver means the intentional relinquishment or abandonment of a known right or argument.
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Last year, an en banc majority of the Eleventh Circuit discussed the difference. The decision asserted that courts may “resurrect” forfeited issues when prudence suggests it is necessary. Prudential practice may also dictate otherwise, the Court stated, but “the conditions under which we will excuse it are up to us as an appellate court.” The Court thus claimed a great deal of unfettered discretion.

Consistent with that authority, in United States v. Perkins, the CAAF acknowledged “[a] familiar principle of appellate practice is that an appellee or respondent may defend the judgment below on a ground not earlier aired.” 78 M.J. 381, 386 n.8 (C.A.A.F. 2019) (alteration, internal quotation marks, and citations omitted); see also United States v. Bess, 80 M.J. 1, 11–12 (C.A.A.F. 2020) (approving Court of Criminal Appeals’ decision to uphold the ruling of a military judge for a different reason than the ones on which the military judge relied). We also find persuasive the concurring opinion by Judge Hardy in Whiteeyes, which considered the findings testimony of an expert witness even though “the military judge did not have the benefit of the expert witness’ testimony when he ruled on Appellant’s motion.” 82 M.J. at 180 (Hardy, J., concurring in the judgment). Judge Hardy noted that testimony was “properly included in the joint appendix and can be considered by this Court.” Id. The opinion of the court in Whiteeyes similarly relied on that expert witness’s testimony.

We find that Appellant has failed to meet his burden to demonstrate deficient performance by his trial defense counsel. Applying the Polk factors to the present case, it is uncontroverted that trial defense counsel did not file a motion under R.C.M. 914 for production of SM’s video-recorded statements to AFOSI. That said, we find that Appellant’s trial defense counsel have articulated a reasonable rationale for not doing so—they could not confirm that the video recordings in question ever existed, and feared they might exist. We also find that it was reasonable for Appellant’s defense counsel to question whether the video recorded interviews existed because the videos had never been viewed by AFOSI agents or any member of the prosecution team.

Trial defense counsel have further articulated that they strategically chose not to press the Government to either search for the videos or produce the videos because they did not think it would be helpful to Appellant’s defense. On this point, we find it reasonable for Maj AN to conclude that she “did not want to give trial counsel the ability to use a video recording for prior consistent statements with a potentially sympathetic victim visually depicted in the video.” Further, she feared the “likelihood that [SM] would appear distraught, disheveled, or injured in any video recording given her immediate reporting of the assault” would garner sympathy from the members. Finally, she explained her strategy was to “highlight that [AF]OSI did not have the video recordings in an effort to discredit the investigation.” We do not find these strategic decisions by Appellant’s trial defense counsel unreasonable or based on inadequate investigation

United States v. Cunningham

​Whether the Air Force Court properly applied United States v. Edwards, 82 M.J. 239 (C.A.A.F. 2022) in finding error—but no prejudice—for a victim impact statement that included videos, personal pictures, stock images of future events, and lyrical music that touched on themes of dying, saying farewell, and becoming an angel in heaven.

​victim impact statement consisted of her orally addressing the military judge while using a PowerPoint slideshow that consisted of pictures, videos, and somber music. The PowerPoint presentation contained eleven slides, including animations which included transitions, appearing and disappearing text, and slides crumpling like paper that is being thrown away. It also included over fifty still images; four still images which were stock images of future life events which ZC would not experience (such as a first day at school, marriage, and graduation); and embedded presentations that automatically played video with accompanying audio. CM then finished her victim impact statement orally. CM stated that “all the slides [she] presented . . . videos, pictures, words . . . all come from [her].”

On 16 May 2023, pursuant to Article 6b, Petitioner requested this court issue a writ of mandamus and stay of proceedings in the pending court-martial of United States v. Technical Sergeant MFK (the Accused). Petitioner requests this court “vacate the trial court’s decision [dated 11 May 2023] to order disclosure of extensive medical records” of Petitioner. On 19 May 2023, this court issued an order staying the court-martial proceedings and staying further implementation of the trial court’s 11 May 2023 order to the 56th Medical Group (56 MDG), pending further order by this court. This court ordered briefs and [h]aving considered [everything], we deny the petition. 

to grant the defense motion in part. The military judge’s findings of fact included, inter alia, that Petitioner was the “primary witness against the [A]ccused” on each of the charged offenses; that Petitioner and the Accused were married at the time of the alleged offenses; and that Petitioner had told multiple individuals she had sought medical and mental health treatment due to injuries allegedly caused by the Accused, and had spoken with Family Advocacy personnel. The military judge noted the responses to the defense motion from the Government and from Petitioner, but stated he had not considered the latter due to Petitioner’s “lack of standing before this trial court,” citing In re HK.
. . .
In furtherance of his ruling, on 11 May 2023 the military judge also issued a separate order to the 56 MDG located at Luke AFB to “provide any medical, mental health, or Family Advocacy records [pertaining to Petitioner] maintained by the [56 MDG] or any subordinate clinic.” The military judge directed the 56 MDG to work with a medical law attorney (ed. note, which helps avoid the problem we saw in In re B.M.), to “ensure any and all matters subject to privilege under Military Rule of Evidence 513 are redacted prior to providing the information” to trial counsel “as soon as practicable and no later than 1700 local on 24 May 2023.” The military judge further ordered that only the Prosecution and Defense (to include appointed expert consultants), as well as Petitioner and her Victims’ Counsel, were to have access to the disclosed records.