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Readers may remember that a certificate for review was filed in Downum. Wednesday, May 15, 2024
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United States v. JonesIs post-incident browser history admissible in a sexual assault[1] of a child case as res gestae, on “some other theory, or as consciousness of guilt?” (The Appellant points out in the Reply that the government never offered the consciousness of guilt theory at trial and should be precluded from bringing it up now.) We don’t know. The court skipped answering the question, assumed an error in the admission, and tested for prejudice. On the way to concluding there was no prejudice, the court made it clear that the “three factors” in United States v. Kohlbeck, 78 M.J. 326 (C.A.A.F. 2019) are used to decide if the military judge abused her discretion. In a footnote, the court rejects the test in United States v. Perez-Tosta, 36 F.3d 1552, 1562 (11th Cir. 1994). Kohlbeck is the test for nonconstitutional evidentiary errors. Does this chronology from the opinion help decide admissibility? ? November 2020 is the date of the incident. Appellant’s neighbor, SD, walked into the room and saw Appellant kneeling on the bed with his pants down and AG lying on the bed in front of him. SD immediately went into the bathroom and vomited. Appellant “jumped up and pulled his pants up” and told AG he would be in trouble if anyone found out what had happened. SD confronted Appellant later that day to clarify what she had seen. 0400, 5 November, CID interrogates and gets admissions and his smartphone.
The DFE found internet searches “for “how many years for sexual assault,” “choking charge,” “Types of sexual assault,” and “what is sextual [sic] assault.”” May I suggest the searches are not, or shouldn’t be admissible: (1) The searches are clearly not res gestae; they were done after the event was complete and after the confrontation. (2) The searches are cumulative to his statements, which do express a consciousness of guilt that “he would be in trouble if anyone found out.” Mil. R. Evid. 403 ought to keep them out. (3) A wise prosecutor doesn’t want to introduce a potential error when the rest of the evidence—the “admission” when confronted, independent eyewitness testimony, and the admissions to CID. This is more than sufficient to support guilt BRD. Also, the available evidence doesn't suggest any action that could be construed as "choking." (4) An argument can be that the searches indicate doubt in his mind whether he did commit a sexual assault, so he’s checking to see what the ever-reliable Google says. Or does that counter the government’s argument that “He knew what he did was wrong[?]” That's the Mil. R. Evid. 403 objection. The Appellant's Reply brief makes this point. However, appellant’s internet searches are more indicative of an ignorant or naïve mind. Contrary to the government’s assertion, the evidence here is even less indicative of consciousness of guilt than in United States v. Tovarchavez, 78 M.J. 458 (C.A.A.F. 2019). In Tovarchavez, the appellant had sent apology texts, which were not considered evidence indicative of guilt. Here, appellant was simply inquiring about the allegations and trying to understand what he might be facing. There is no inference of guilt but rather a search for information after being accused. --------- [1] One specification of sexual assault of a child, two specifications of sexual abuse of a child, and one specification of aggravated assault. The 2023 season is almost over with yesterday's decisions in Wheeler and Strong. And now for something different. We thought we'd try to get some audience participation—that's you, dear readers. We would like your suggestions for the three most consequential decisions of the season. It would be even better if you gave a pithy explanation of why they are consequential. There is just over a month before the new season starts on 1 October when we can share any results. You can do this by emailing [email protected]. or pseudonym is OK. United States v. WheelerUnited States v. StrongNo. 24-0138/MC. U.S. v. Juan I. Campos. CCA 202200246. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issue: DID THE MILITARY JUDGE ABUSE HIS DISCRETION BY ADMITTING AND CONSIDERING, OVER DEFENSE OBJECTION, ALLEGATIONS OF ADDITIONAL MISCONDUCT IN THE UNSWORN VICTIM IMPACT STATEMENT? Appellant will file a brief on or before September 16, 2024; Appellee will file an answer brief no later than 30 days after the filing of Appellant's brief; and Appellant may file a reply brief no later than 10 days after the filing of Appellee's answer brief. Do we have a volunteer? The court has decided Leipart I can't post because I was involved early with the appeal or have a similar issue I'm briefing for NMCCA. It's the duty to the client thingy≥. A volunteer could send us a draft at [email protected]. We will post it. We have in the past posted unsolicited offerings under the person's name, pseudonym, or anonymity. The only editing we've done is to correct some typos. United Sates v. SwisherCourtesy of "Anonymous." In Swisher, the CAAF clarifies that a civilian prosecution may qualify as a “closely related case” for sentence comparison purposes. The appellant and a civilian “sexually assaulted the same young woman at the same time and in the same manner.” In state court, the civilian received a suspended sentence and probation. At court-martial, the appellant received a stronger sentence: fifty-four months confinement, reduction to E-1, and a DD. Before the NMCCA, the appellant argued that the civilian’s case was “closely related” and the sentences were highly disparate. But the NMCCA declined to compare the two cases, in large part because the other case was adjudicated by a civilian jurisdiction. The CAAF holds this was error, stating: “the mere fact that the sentence in Appellant’s case was the product of a court-martial proceeding and the sentence in [the civilian’s] case was the product of a civilian criminal proceeding is not necessarily dispositive of the issue of whether the two cases are ‘closely related.’” As such, the lower court’s decision was “influenced by an erroneous view of the law” and, therefore, constituted an abuse of discretion. Turning to remedy, the CAAF determines it would be inappropriate for it to conduct the sentence appropriateness review directly, particularly as it is a heavily fact-driven analysis. The proper remedy is remand for consideration by the CCA under the correct legal principles. Judge Sparks dissents. Although he agrees that a civilian prosecution may qualify as a “closely related case,” Judge Sparks argues that the majority goes too far towards requiring the CCA to engage in a sentence comparison analysis. “The lower courts may compare the sentences of civilian and military defendants if they choose to, but they are not required to do so.” United States v. ArmstrongHere, the military judge declined a motion to recuse based on assertions the military judge "actual and apparent bias" toward the defense. On appeal, the Appellant proceeded on just the appearance of bias. The law on judicial recusal for apparent bias is clear. Looking at the issue objectively, a military judge must recuse themself when "a reasonable person knowing all the circumstances would conclude that the military judge’s impartiality might reasonably be questioned.” The denied motion is reviewed for an abuse of discretion. This case is more about courtroom presentation than the law and is a reminder that we must all mind what we say and how we say it to maintain the solemnity of the occasion. The Code of Conduct for federal judges requires that, A judge should be patient, dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity. A judge should require similar conduct by those subject to the judge’s control, including lawyers to the extent consistent with their role in the adversary process. Here's a piece for the National Judicial College by retired judge Benes Aldana (some may know and recognize retired military judge CAPT Benes Aldana, USCG): When It Comes to Civility in Court, It’s Do or Die. 5 May 2023. In Anderson, the court does not get into specifics--rather generalities about the various interactions. The court did drop of footnote that "the civilian defense counsel was discourteous to the military judge and that the military judge acknowledged that she needed to work on her patience." The Appellant's CAAF briefs are at (brief) (reply brief) and the Appellee here (brief). It appears some of the interchanges were not transcribed, but we have the benefit now having access to the audio. The recusal litigation got a bit weird when the defense called the bailiff to testify so as to make a record. Air ForceUnited States v. Myers. The Appellant challenged the factual and legal sufficiency of his conviction for communicating a threat. He was convicted in September 2022. He argued that any threat was conditional and regardless it was for the legitimate purpose of getting mental health treatment.
Prof. Friedman, has this advice. Failure to preserve: Why does this keep happening?  There is currently no independent academic journal devoted to military justice. The closest thing, The Military Law and the Law of War Review, published by Elgar, devotes itself to LOAC. The service journals in the USA are effectively repositories for LLM final papers from the various JAG training centers, have no independence from the U.S. Government (including no academic freedom), and no oversight from academics or scholars. A serious independent journal is sorely needed. Enter the Forces Law Review, a new venture jointly organized by the National Institute of Military Justice (USA), and the University Institute of Legal Studies, Panjab University (India), published by The Browser and distributed by Simon & Schuster. More information to come! Co-editors: Prof Franklin Rosenblatt President NIMJ, Washington, DC, USA MC School of Law, Jackson, Mississippi, USA Prof Shruti Bedi Director CCPP Director UILS, Panjab University, Chandigarh, India Major Navdeep Singh Advocate, Punjab & Haryana High Court, Chandigarh, India Editorial Board:
Ms Aishwarya Bhati, Additional Solicitor General, India Ms Shivani Dasmahapatra, Communications & Public Policy Specialist, India Mr Eugene Fidell, Yale Law School, USA Prof Brenner Fissell, Villanova University Charles Widger School of Law, USA Prof Gwenaël GUYON, Académie militaire de Saint-Cyr Coëtquidan, France Judge Alan Large, Judge Advocate General, UK Prof Daniel Maurer, Ohio Northern University College of Law, USA Dr Ronald Naluwairo, Advocate, Uganda Ms Francisca Pretorious, former Head, Office of Civil and Criminal Justice Reform, Commonwealth Secretariat, UK/South Africa/USA Justice RN Raina, former High Court Judge, India Justice Maria Elizabeth Rocha, former Superior Court President and Judge, Brazil Mr Sanjeev Sharma, Senior Advocate, India Dr Song Tianying, Centre for International Law Research and Policy, Italy Prof Rachel VanLandingham, Southwestern Law School, USA https://www.justsecurity.org/98438/guantanamo-plea-deals-austin-escallier/
"Pretrial agreements are contracts—one set of promises exchanged for another. They became binding when they were approved by General Escallier. The Manual for Military Commissions permits the convening authority to withdraw at any time before the accused begins performance, but Secretary Austin could only do so if he was properly exercising the functions of the convening authority. He wasn’t because his withdrawal of power from General Escallier was defective. Specifically, under his memorandum, she remained the convening authority not only for other military commission cases, but even for these three cases. In these three, she can no longer enter into pretrial agreements. But nothing in the Military Commissions Act or implementing regulations permitted him to withdraw part of her power over particular cases, while leaving her the dregs, such as the resolution of routine administrative matters. Nor does the law permit him to withdraw only the power to enter plea agreements –perhaps the most important power the convening authority possesses–but retain other powers to dispose of the charges. Severing the pretrial agreement power from the rest was beyond his authority." The JSC will hold a public meeting for input on the proposed amendments to the MCM at 10 a.m. on August 14 at CAAF. The meeting may also be attended and comments provided remotely. Information is available here:
https://jsc.defense.gov/Portals/99/2024%20MCM%20files/Virtual%20meeting%20instructions%20for%2014%20Aug%202024%20mtg.pdf?ver=ae_YKhktCG8PR7L77X0zWw%3d%3d NIMJ will host a public zoom panel discussion this Friday at noon U.S. EST on the Guantanamo plea deals, the switcheroo, and the current state of play of the Military Commissions.
Zoom link for Friday: https://zoom.us/j/97098984116 |
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
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