M.W. v.United States affirms the conclusion in EV v. United States that CAAF lacks jurisdiction to hear a petition from an alleged victim who lost at the CCA. Here is the CCA opinion. M.W. at AFCCA consolidates several petitions where the issue was the TC and SVC coordinating over challenges to members. This case lead to an earlier discussion about whether a TC and SVC's interactions can become so intertwined that the SVC becomes a de facto trial counsel subject to all the rules of discovery (and the issue of TC having to disclose the contents of those discussions because if there is no de facto TC, then there is no attorney-client privilege between the TC and SVC. In EV v. United States, 75 M.J. 331, 332 (C.A.A.F. 2016), this Court held that it did not have jurisdiction to review a decision of a Court of Criminal Appeals (CCA) at the request of a “victim of an offense” as that term is used in Article 6b, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 806b (2018). Although Congress has since amended Article 6b, UCMJ, and other provisions of the UCMJ, we are compelled to hold again today that this Court lacks jurisdiction to review a petition filed by a victim of an offense. Our decision rests solely on the statutory language of the UCMJ. It does not reflect any policy decision about whether this Court should have statutory jurisdiction, which is a matter solely for Congress. We further see no reason that Congress could not amend the UCMJ to grant this Court jurisdiction to review a petition filed by the victim of an offense. However, as currently written, neither the language of Article 6b, UCMJ, nor any other statute, grants this Court the necessary jurisdictional authority to review a petition filed by a victim of an offense. We therefore dismiss the petition in this case. United States v. Smith. Judge Johnson's first opinion (unanimous) deals with the intricacies of the excited utterance exception to hearsay under Mil. R. Evid. 803(2). AFCCA decided Smith's three issues adverse to him. Of interest, (1) whether the evidence was legally and factually sufficient to support his conviction, (2) whether the military judge erred in admitting text messages and testimony as excited utterances[.] NIMJ will host an in-person conference on October 6, 2023, at George Washington Law School. The topic will be transparency in military justice.
In re VM is another SVC petition for a writ of mandamus asking that the court vacate a MJ's decision to grant a defense-requested continuance of trial and ordering that the SVC be allowed to have input to the motion. 15 July 2022, two charges against the Real Party in Interest (“the accused”) were referred to a general court-martial. The trial was set for 12 June 23, apparently without an objection from the CW. 3 May 2023, the MJ granted a defense motion for a continuance until "any date after 1 August," which happened to be 28 August. On 30 May, the SVC petitioned for a writ. (AFCCA RP&P Rule 19(b)(1) says, "A petition for extraordinary relief shall be filed as soon as possible but, in any event, no later than 20 days after the petitioner learns of the action complained of.") Appellant retained new counsel, Mr. CH, who filed a notice of appearance with the trial court on 17 April 2023. On 19 April 2023, the Defense filed a motion to continue the trial to a date no earlier than 1 August 2023. On the same date, Mr. CH clarified that his appearance was limited to his request for a continuance, as he would not be able to represent the accused if the request was denied. Apparently there was a filing from the SVC on behalf of the CW. The military judge considered the parties’ filings, but did not consider the separate responses from the detailed victims’ counsel for VM and the child. Citing In re HK, 2021 CCA LEXIS 535 (A.F. Ct. Crim. App. 22 Oct. 2021) (order), the military judge explained in a footnote: “This court received the responses but did not consider them due to lack of standing before this trial court.” VM’s counsel’s response totaled 49 pages, comprised of an 8-page document from counsel and 7 attachments, including VM’s memorandum and attachment. VM’s counsel asserted the Defense had not established a reasonable basis for a continuance; a continuance is not just as it violates VM’s Article 6b, UCMJ, rights; and the accused’s interest in “convenience” does not outweigh VM’s Article 6b, UCMJ, rights. In granting the continuance, the MJ considered the TC's objections and filings, which included information from the CW. He did not consider the SVC's filing for lack of standing. The TC did a robust job of advocating for the CW's interests in keeping the scheduled trial date. Although the court did make a point that, Importantly, absence of a specific statutory right to be heard does not mean that a military judge is prohibited from considering a victim’s effort to exercise Article 6b, UCMJ, rights. To the extent the military judge in this case believed otherwise based on the unpublished order In re HK, he was mistaken, but any such mistake in this case is not dispositive on the issues before us. The court concludes that the MJ properly balanced the accused's convenience in being represented by counsel of choice against the interests of the CW, which were thoroughly funneled and argued through the TC as her advocate. Stated another way, the CW's 6b rights were effected by the TC and considered by the MJ. The opinion does not indicate that the SVC alleged the TC failed to advance any argument the SVC would have made or failed to proffer sufficient evidence. One imagines there may have been some consultations between the TC and SVC before the hearing? The military judge denied VM the opportunity to be heard through counsel, but otherwise allowed her exercise of rights to proceedings free from unreasonable delay and to be treated with fairness under Article 6b, UCMJ. VM was not entitled “to a trial date of her choosing,” but her circumstances were “factor[s] for the military judge to consider in balancing competing interests and making scheduling decisions.” In re KK, 2023 CCA LEXIS 31, at *16–18. The military judge considered VM’s personal statement and its attachment, as well as the argument from the Prosecution on VM’s behalf. He considered how a delay would affect VM and her family. He balanced VM’s rights with the accused’s rights, and ultimately ruled in favor of the accused. We've all seen plenty of times where the SVC in a case had the right to make a presentation on an issue--412, for example--but waived off because everything they would say had already been said by the TC. Having two people say the same thing doesn't improve the argument.
United State v. Baba should be read because of its treatment of Army Regulation 600-25. The appellant was alleged to have possessed controlled prescription medications past their expiry date. Dissecting the regulation, the court finds factual insufficiency in showing the wrongfulness of possession in that circumstance. The court affirmed his convictions for stealing drugs from the pharmacy. NOTE: The CAAF Daily Journal for 6 July shows a petition for review filed. United States v. Tate is a 'verbatim record' case. 20 September 2018, the appellant was sentenced to 22 months, RiR to E-3, and a BCD. (Appellant's brief.) The two issues on appeal were the MJ allowing the government to present its sentencing case a second time and whether the CA improperly approved the sentence without a "substantially verbatim transcript." On 25 September 2020 a 2-1 majority of the ACCA set-aside the sentence but after a reconsideration en banc, in a 5-2 opinion (written by the dissenting judge in the first decision), affirmed the findings and sentence . On 23 May 2022, the CAAF agreed with the orinial panel and set-aside the sentence and ordered a rehearing on sentence. 82 M.J. 445 (C.A.A.F. 2022). A rehearing was held and the MJ sentenced the Appellant to the same 22 months, with one month credit for excessive post-trial delay. An empty remedy for the Appellant. He likely would have been released at his MRD in plus or minus 18.3 months. However, he still may have remained on MSRP for the full 22 months and not received any benefit from the one month credit. In accordance with DoDI 1325.07, “Administration of Military Correctional Facilities and Clemency and Parole Authority:” If you are not approved for or you have not accepted parole, you may be reviewed by your Military Department Clemency and Parole Board (C&PB) for release at your minimum release date under MSR. MSR is similar to parole. A prisoner released on MSR through good conduct time (GCT) and abatement credits is subject to supervision by a U.S. probation officer up to the full-term of the sentence imposed. A proposal. LtCol Greg Curley, Exploitation. 230 Mil. L. Rev. 421 (2023). The author proposes the adoption of an enumerated offense under UCMJ Art. 134, which he suggests would criminalize “Precursor Behaviors to Sexual Assault.” As part of the offense, he also suggests what most of us would consider a service-connection requirement. He suggests, Exploitation is a separate and distinct offense from a sexual assault, and both the exploitation and the consummated offense that was its object may be charged, tried, and punished. The commission of the intended offense may satisfy the intent element of the exploitation charge. He does not address whether the offense should be labeled a lesser included offense, the potential for multiplicity questions, or whether the acts of the new offense are res gestae acts that may be separately punished. This will be an area of litigation. For example, United States v. Gaddy, ARMY 21050227, 2017 CCA LEXIS 179, at *5 (Army Ct. Crim. App. 20 Mar. 2017) (summ. disp.) ("When conduct is inexorably intertwined with the alleged offense itself, it is not 'other sexual behavior,' but rather becomes part of the res gestae of the offense. That is, the testimony 'was admissible as part of the same transaction as the assault.") (citing United States v. Peel, 29 M.J. 235, 239 (C.A.A.F. 1989). Res gestae evidence is vitally important in many trials. Id. at 393. See also United States v. Peel, 29 M.J. 235, 239 (CMA 1989). It enables the factfinder to see the full picture so that the evidence will not be confusing and prevents gaps in a narrative of occurrences which might induce unwarranted speculation: United States v. Metz, 34 M.J. 349, 351 (C.A.A.F. 1992). He does suggest making the offense a specific intent one, to which an accused’s level of intoxication may be a defense. (Remember, alcohol is a consistent factor in many sex offense cases for both the accused and the alleged victim.) Voluntary intoxication, whether caused by alcohol or drugs, is not a defense. However, evidence of any degree of voluntary intoxication may be introduced for the purpose of raising a reasonable doubt as to the existence of actual knowledge, specific intent, willfulness, or a premeditated design to kill, if actual knowledge, specific intent, willfulness, or premeditated design to kill is an element of the offense. R.C.M. 916(l)(2).
And he acknowledges “there will likely be constitutional challenges to the proposed crime (e.g., void for vagueness, notice, or overbreadth).” It may be overactive imagination on my part, but could there be a Hills/Hukill problem? A final question, is the proposal just another way of charging an attempt to sexually assault under Article 80? In May 2021, the Advisory Committee on Evidence Rules gave final approval to a proposed amendment to Rule 702. Then in May 2022, after allowing a period for public comment, the advisory committee issued its final report to the Standing Committee on Rules of Practice and Procedure. The advisory committee recommended that the proposed amended Rule 702 be confirmed and take effect on December 1, 2023. Daniel P. Elms, Rule of Evidence 702 Is Changing Faster Than You Think. ABA May 24, 2023. You can find the change forwarded in April to Congress here (along with a change to Fed. R. Evid. 106). Unlike the JSC, the FRAC has a robust "history" of the rule changes proposed and/or adopted. Mil. R. Evid. 1102 would make the change effective for courts-martial July 2025, absent any action by the President. The ABA article notes that, Unsurprisingly, litigants took a keen interest in the proposed amendment and the advisory committee’s comments. But perhaps less predictably, courts began to rely on those comments to inform their decisions on pending Rule 702 admissibility issues. In Sardis v. Overhead Door Corp., for example, the appellate court cited the advisory committee’s admonishments in its decision reversing the district court’s admission of expert testimony on shipping container design. And in Bishop v. Triumph Motorcycles America Ltd., the district court followed the path set by Sardis and did the same regarding expert testimony on motorcycle design and safety. Ellis, Hicken, & Ash, Criminal Investigation into Coast Guard Academy revealed years of sexual assault cover-ups, but findings kept secret. CNN, 30 June 2023. A secret investigation into alleged sexual abuse at the US Coast Guard Academy, the training ground for the Coast Guard’s top officers, uncovered a dark history of rapes, assaults and other serious misconduct being ignored and, at times, covered up by high-ranking officials. Susan Haigh, Coast Guard apologizes for mishandling of sexual assaults at academy following revelation of probe. AP 30 June 2023. The U.S. Coast Guard apologized Friday for not taking “appropriate action” years ago when it failed to adequately handle cases of sexual assault and harassment at the service’s Connecticut academy. The service also acknowledged it did not widely disclose its six-year internal investigation into dozens of cases from 1988 to 2006. |
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
Co-editors:
Phil Cave Brenner Fissell Links
SCOTUS CAAF -Daily Journal -2025 Ops ACCA AFCCA CGCCA NMCCA JRAP JRTP UCMJ Amendments to UCMJ Since 1950 (2024 ed.) Amendments to RCM Since 1984 (2024 ed.) Amendments to MRE Since 1984 (2024 ed.) MCM 2024 MCM 2023 MCM 2019 MCM 2016 MCM 2012 MCM 1995 UMCJ History Global Reform Army Lawyer JAG Reporter Army Crim. L. Deskbook J. App. Prac. & Pro. Archives
February 2025
Categories
All
|