National Institute of Military Justice
  • Home
  • About
    • Officers
    • Board of Directors
    • Fellows
  • Orders Project
    • Contact Us
    • Who We Are
    • Sourcebook
  • Trans Rep. Project
  • CAAFlog
  • Global Reform
  • Library
    • Amicus Briefs
    • Position Papers & Letters
    • Reports
    • Gazette
    • Miscellaneous
    • General Military Law
  • Links
    • State Codes
    • Non-DoD Organizations
    • Foreign Systems
  • Prizes
  • Contact Us
  • Donate
  • Home
  • About
    • Officers
    • Board of Directors
    • Fellows
  • Orders Project
    • Contact Us
    • Who We Are
    • Sourcebook
  • Trans Rep. Project
  • CAAFlog
  • Global Reform
  • Library
    • Amicus Briefs
    • Position Papers & Letters
    • Reports
    • Gazette
    • Miscellaneous
    • General Military Law
  • Links
    • State Codes
    • Non-DoD Organizations
    • Foreign Systems
  • Prizes
  • Contact Us
  • Donate

CAAFlog

More--sort of--on VIS

8/29/2023

 
Friday, August 25, 2023
Petition for Grant of Review - Summary Disposition
 
No. 23-0004/AF. U.S. v. Humphrey Daniels III. CCA 39407. On further consideration of the granted issue, 83 M.J. (C.A.A.F. 2023), and in view of United States v. Harrington, 83 M.J. ___ (C.A.A.F. 2023), it is ordered that the decision of the United States Air Force Court of Criminal Appeals is affirmed as to findings but set aside as to sentence. The case is returned to the Judge Advocate General of the Air Force for remand to that court for a new review under Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c) (2016).  In its review, the AFCCA should consider whether any of Appellant's challenges to the delivery of the unsworn victim statement during the sentencing phase of his court-martial have been waived, forfeited, or preserved, and address them accordingly.  See United States v. Steele, 83 M.J. 188, 191 (C.A.A.F. 2023) (explaining that "[w]hether an issue is waived or forfeited is an issue of law that this Court could decide" but concluding that it was preferable to "remand the case to allow the [CCA] to rule on th[at] question in the first instance").
Appellant’s case is before us (AFCCA) for the second time. A general court-martial composed of officer members convicted Appellant, contrary to his pleas, of one specification of negligent dereliction of duty, one specification of rape, and four specifications of conduct unbecoming an officer and a gentleman in violation of Articles 92, 120, and 133, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 920, 933, corresponding to Charges I, II, and III, respectively. The court members adjudged a sentence of a dismissal, confinement for three years, and a reprimand.
Daniels initially benefitted from Manangahas but then didn't because of Briggs. Among the issues was an IAC claim,
whether Appellant’s lead civilian trial defense counsel was ineffective by failing to challenge a court member, failing to fully cross-examine the alleged rape victim, failing to request a certain findings instruction, failing to object to the alleged victim presenting her unsworn statement in question-and-answer format through trial counsel, and failing to disclose to Appellant a personal conflict of interest[.]
Here is, partly, what seems to have drawn the remand.
During presentencing proceedings, trial defense counsel objected to TS being permitted to give an unsworn statement to the court pursuant to R.C.M. 1001A on the grounds that the rule did not exist and unsworn victim statements were not authorized at the time of the offense in 1998. Trial defense counsel also objected to TS providing her unsworn statement orally in a question-and-answer format, on the grounds that R.C.M. 1001A did not specifically enumerate such an option, and to not being given an advance written copy of the unsworn statement. The trial judge ultimately overruled the first two objections, but she did require TS to present her oral unsworn statement in an Article 39(a), UCMJ, 10 U.S.C. § 839(a), session before providing it to the court members. During this Article 39(a), UCMJ, session, the military judge observed that R.C.M. 1001A(e)(2) “seem[ed] to require the victim’s own counsel do the questioning.” In response, trial defense counsel clarified that the Defense “d[id] not have an objection to the government counsel doing the question and answer.” After trial counsel additionally represented that the proposed question-and-answer presentation had been coordinated with TS’s Special Victims’ Counsel (SVC) and that it was what TS wanted, the military judge allowed it.
But,
In their declarations, all three trial defense counsel state Mr. AC made a “strategic decision” not to object to trial counsel’s participation. As Mr. AC explained, the evident alternative was that TS’s SVC would conduct the questioning, and trial defense counsel believed questioning by the trial counsel would lead to a “more tightly constrained” and “less emotional” unsworn statement, which was preferable from the Defense’s perspective. We find this was a reasonable strategic decision to forego the objection.
I dunno. The DC statement contains sufficient language of waiver based on a reasonable tactical choice.

​Perhaps the earlier objection to the TC lead Q&A confuses things, "Trial defense counsel also objected to TS providing her unsworn statement orally in a question-and-answer format, on the grounds that R.C.M. 1001A did not specifically enumerate such an option[.]"

ChatGPT on Military Justice

8/28/2023

 

5th Circuit Court of Appeals

8/28/2023

 
In U.S. Navy Seals, et. al. v. Biden. et. al., the court has dismissed the case.
This appeal involves the Navy's near-categorical refusal to accommodate servicemembers' inability to receive a vaccine due to their religious convictions. The district court twice enjoined the Navy's policies as likely illegal under RFRA. After entry of those injunctions, however, Congress ordered the military branches to rescind their mandates. The Navy complied with that directive and then went above and beyond it—rescinding all the challenged policies and formally announcing that COVID-19 vaccines would not be imposed on any servicemember.
The Navy's actions moot this appeal. So, despite the overwhelming importance of the issues presented, we lack jurisdiction to address them.

SG Responds in Larrabee

8/25/2023

 

NIMJ GTMO Report Vol. 8

8/25/2023

 

Bergdahl Case's Last Gasps

8/24/2023

 
bergdahl_v._united_states__doc.pdf
File Size: 365 kb
File Type: pdf
Download File

1.pdf
File Size: 104 kb
File Type: pdf
Download File

NIMJ Conference Info: Webpage Now Live

8/23/2023

 
Information on the upcoming NIMJ Conference on Transparency in Military Justice is now available, with speaker information as well as a registration form.

Visit the full page here.
Panel I: The Role of the Press | 10:00AM-11:30AM

Moderator: Brenner Fissell, NIMJ
David Phillips, National Correspondent, The New York Times
Kyle Rempfer, Editor, The Washington Post
Thomas Brennan, Founder, The Warhorse News
Jessica Kegu, Producer, CBS News
 
Panel II: Public Involvement in Lawmaking and Rulemaking | 12:30PM--1:45PM


Moderator: Rachel VanLandingham, NIMJ
Eugene Fidell, Senior Research Scholar, Yale Law School
Jamie Jackson, Partner, K&L Gates
Don Christensen, Of Counsel, Solomon Law
 
Panel III: Public Access to Courts | 2:00PM--3:15PM


Moderator: Franklin Rosenblatt, NIMJ
​Seth Berlin, Senior Counsel, Ballard Spahr
Sarah Matthews, Deputy GC, Pro Publica
Brittany Warren, Senior Associate, WilmerHale

Air Force Court of Criminal Appeals

8/21/2023

 
In Robles, there are two issues of interest.
 (3) whether a provision in Appellant’s plea agreement providing that dismissal of certain charges and specifications would ripen into dismissal with prejudice “upon completion of appellate review where the findings and sentence have been upheld” is void or otherwise unenforceable[.]
. . . 
​We have carefully considered issue (3) and find Appellant is not entitled to relief. See United States v. Goldsmith, No. ACM 40148, 2023 CCA LEXIS 8, at *15 (A.F. Ct. Crim. App. 11 Jan. 2023) (unpub. op.) (finding plea agreement term—requiring the convening authority to dismiss the additional charges and specifications with prejudice “upon completion of appellate review where the findings and sentence have been upheld”—permissible because it does not violate law or public policy).
It's hard to see how the term is prejudicial to the accused without seeing the briefs. The practice is similar in federal court. The federal courts also allow a waiver of appeal provision in the PTA.
(1) whether the military judge erred in admitting victim impact statements[.]
. . . 
​Appellant contends that the military judge abused his discretion when he admitted written unsworn statements by HoP, HP, and CJ during presentencing proceedings over trial defense counsel’s objections. Appellant argues now, as he did during presentencing, that a victim’s right to be reasonably heard is “tethered to” the physical presence of the crime victim at the presentencing proceeding pursuant to Rule for Courts-Martial (R.C.M.) 1001(a)(3)(A). We disagree and find that the military judge did not abuse his discretion and that no relief is warranted.
The Appellant pled guilty IAW a PTA, and so the MJ did the sentencing. Not sure how this form over substance argument prejudices the Appellant? The defense had objected to some of the content in the VIS which the victim redacted.

Fidell:  THE CASE FOR TERMINATION OF THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

8/20/2023

 
appellate-5750-fidell.pdf
File Size: 371 kb
File Type: pdf
Download File

RIP: Evan Seamone

8/17/2023

 
evan_obit__final_.pdf
File Size: 201 kb
File Type: pdf
Download File

<<Previous
    Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
    Picture
    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.

    Dockets

    Air Force

    Art. 32.
    Trial.

    Army

    Art. 32.
    Trial.

    Coast Guard

    Art. 32.
    Trial.
    ​"Records."

    Navy-Marine Corps

    Art. 32.
    Trial.
    "Records."

    Archives

    June 2025
    May 2025
    April 2025
    March 2025
    February 2025
    January 2025
    December 2024
    November 2024
    October 2024
    September 2024
    August 2024
    July 2024
    June 2024
    May 2024
    April 2024
    March 2024
    February 2024
    January 2024
    December 2023
    November 2023
    October 2023
    September 2023
    August 2023
    July 2023
    June 2023
    May 2023
    April 2023
    March 2023
    February 2023
    January 2023
    December 2022
    November 2022
    October 2022
    September 2022
    August 2022
    July 2022
    June 2022
    May 2022
    April 2022
    March 2022

    Categories

    All
    ByTheNumbers
    Case2Watch
    CrimLaw
    Evidence
    Fed. Cts.
    Habeas Cases
    IHL/LOAC
    Legislation
    MilJust Transparency
    NewsOWeird
    Opinions ACCA
    Opinions-ACCA
    Opinions AFCCA
    Opinions CAAF
    Opinions CGCCA
    Opinions NMCCA
    Readings
    Sentenciing
    Sex Off. Reg.
    Sexual Assault
    Supreme Court
    Unanimous Verdicts

    RSS Feed

Proudly powered by Weebly