Regarding the “inappropriateness to allow [the] privilege,” courts have held that the privilege should not act as both a “sword” and a “shield.” In other words, the privilege holder may not use it to disclose evidence “to establish advantageous facts and then invoke the privilege to deny the evaluation of their context, relevance, or truth—thus turning the privilege from a shield into a sword—a circumstance the waiver rule’s broader language seeks to avoid.” Regarding appropriateness, practitioners should consider the perceived intent behind the communication when it was made and for what purpose

NIMJ

A military judge, sitting as a general court-martial, convicted Appellant, contrary to his pleas, of providing alcohol to minors on divers occasions; wrongfully distributing marijuana on divers occasions; wrongfully distributing psilocybin (mushrooms) on divers occasions; wrongfully using mushrooms on divers occasions; sexually assaulting a child, GB; behaving in a disgraceful and dishonorable manner that seriously compromised his standing as an officer by wrongfully and dishonorably organizing individuals into a violent gang; wrongfully communicating a threat to AL on divers occasions; wrongfully communicating to MH a threat to injure ME by paying someone to assault ME; receiving consideration for arranging for KW, PW, WK, and other unnamed persons to engage in sexual intercourse with others; unlawfully entering ML's house; sexually assaulting a child, FT; wrongfully threatening to hurt, injure, or kill Captain (Capt) CM; wrongfully threatening to hurt, injure, or kill Special Agent (SA) JG; and wrongfully threatening to hurt, injure, or kill Airman Basic (AB) JS, in violation of Articles 92, 112a, 120b, 133, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 912a, 920b, 933, 934.3 The military judge sentenced Appellant to a dismissal, confinement for 25 years, and forfeiture of all pay and allowances. The military judge credited Appellant with 60 days of pretrial confinement credit. The convening authority approved the adjudged sentence.

On appeal, Appellant argues that all of his convictions, except his provision of alcohol to minors, distribution of marijuana, mushroom use, and threats to AL, are legally and factually insufficient. Appellant also claims the Government failed to meet its discovery obligations; he was deprived his constitutional right to effective assistance of counsel at trial;6 the military judge erred in not granting additional sentencing credit for pretrial punishment Appellant suffered during a search of his pretrial confinement sleeping quarters; and post-trial delays in his case warrant meaningful relief.
​
We find there is insufficient evidence to support Appellant's conviction of unlawful entry. We also find that Appellant was subjected to pretrial punishment in violation of Article 13, UCMJ, 10 U.S.C. § 813, and is, therefore, entitled to additional, modest confinement credit. We find no other prejudicial error, affirm the remaining findings, and reassess the sentence below.

Appellant raises one assignment of error with six underlying allegations that trial defense counsel was constitutionally ineffective during his representation of Appellant by failing to: (1) object to improper findings testimony; (2) call a defense expert witness; (3) object to admission of incomplete personnel records; (4) object to an improper victim impact statement; and (5) investigate favorable defense witnesses. In addition, Appellant claims (6) trial defense counsel’s “misplaced concern for the named victim amounted to an actual conflict of interest which adversely impacted his representation” of Appellant by withdrawal of a valid objection during sentencing.

​Although the rationale given by trial defense counsel to explain his advocacy during sentencing is perplexing, Appellant has not shown that any of his allegations constituted a deficiency of a constitutional scale or error that materially prejudiced his substantial rights. We thus affirm the findings and sentence. 

In Richards, Judge Hardy, writing for the Court, does two main things: reiterate the need for the government to prove every single element of an offense, and provide a framework which practitioners can use to determine if something is prejudicial to good order and discipline. United States v. Richard, __M.J.­­__, No. 22-0091/AF, 2002 CAAF LEXIS __ (C.A.A.F. Sept. 7, 2022).

Appellant was convicted of three specifications of violating Article 134, UCMJ, and one specification of violating Article 128, UCMJ. For the Art. 134 charges, the Government had to prove two elements: “(1) that Appellant knowingly and wrongfully produced, possessed, or distributed child pornography; and (2) that under the circumstances, the Appellant’s conduct was to the prejudice of good order and discipline in the armed forces.” Id. At trial, the government relied on Appellant’s military status, his location on a military installation, and use of “resources he received from the military to effectuate the commission of his crimes” to prove the second element of Art. 134, UCMJ. Brief for Appellee at 15, United States v. Richards, No. 22-0091 (C.A.A.F. Apr. 25, 2022). The CAAF said definitively that this was not enough. While finding that “the Government failed to proffer any evidence that Appellant’s misconduct had any negative effect- indeed, any effect at all- on the good order and discipline of the armed forces,” the Court solidified that evidence of actual harm is required to prove the element of prejudicial to good order and discipline. Richards, 2002 CAAF LEXIS __ (C.A.A.F. Sept. 7, 2022).

In an important reminder for trial counsel, Judge Hardy states that the “constitutional mandated” to prove beyond a reasonable doubt every element of the charged offense “applies just as much to the terminal element of Art. 134, UCMJ, as it does every other element of a criminal offense. Id. 

The Court spends a large section of the 15-page decision, as does Judge Maggs’ concurrence, discussing the definition, or lack thereof, of the phrase prejudicial to good order and discipline. “The Government’s expansive view of the scope of conduct that is ‘to the prejudice of good order and discipline’- essentially that any misconduct that has a nexus to the military qualifies- suggests that it might be necessary for us to better define such conduct, something that would be well within this Court’s authority to do so.” Id. After going through some history, the Court settles on the definition given by Colonel William Winthrop in 1895: “The misconduct must be activity against ‘good order’ which affects the ‘condition of tranquility, security, and good government of the military service.’”

The government cited to a few cases, primarily United States v. Davis, 26 M.J. 445, 448 (C.M.A. 1988), to suggest that unlawful conduct coupled with the use of government resources to tangentially further that crime prejudices good order and discipline.  The Court explicitly states that it does not overrule Davis, but it does state “[t]o whatever extent older cases suggest that prejudice to good order and discipline can be assumed or implied based on the misconduct of the accused, those cases have been overruled.” Richards, 2002 CAAF LEXIS __ (C.A.A.F. Sept. 7, 2022).
​
The CAAF overturned AFCCA and the trial court’s decision and found that the case was not legally sufficient as to the three specifications of Art. 134, UCMJ. The case was remanded for further proceedings. For the field, the take aways are: the government must prove every element of the charged offense and the phrase “prejudicial to good order and discipline” means something. 

If Washington and de Saxe are correct that discipline forms the soul of a military, then the United States military seems to be experiencing a spiritual crisis. Increasingly, the public perceives the military term of art “good order and discipline” not as representing a core principle of military effectiveness, but as rhetorical “chaff” military leaders use to voice their opposition to proposed reforms without actually communicating anything. In recent years, military leaders have employed the term to voice their opposition to a number of proposed personnel, social, and legal military reforms, and they have done so without clearly explaining what good order and discipline is or why it requires a certain position on these policies. In most cases, the military ultimately enacted those reforms without any measurable negative effect on good order and discipline. As a result, the linguistic impact of the term has come under fire from Congressional leaders and the media. This battle over the meaning and weight of the good order and discipline rationale has played out most recently in calls for military justice reform.

​ This Article then ties the developments regarding Article 134 to a larger issue: the military’s difficulty in defining what good order and discipline means. To address this situation, this Article proffers a comprehensive definition of the term that military leaders can use to specifically ground their positions and proffers that the military justice system can better specify what conduct is and is not prohibited under Article 134.

However, persisting issues continue to raise the question of whether the contours of the “good order and discipline” term are really understood, or, as the dissent [in Parker v. Levy] held (sic), whether the military has changed to the extent that good order and discipline now represents a nebulous concept.

There is another, albeit more subtle, takeaway from Miner. It is a dual blast arising in Gideon and Strickland, to the defense leadership of all of the Services Defense Counsel functions. With actual trials in courts-martial going the way of the dodo bird, experienced counsel (with supervisory responsibilities) have likewise significantly declined.

Miner demonstrates that the most basic tenets of criminal defense lawyering were not observed. E.g., the very first thing one must do, as SCOTUS has reminded us, is to investigate the facts. Strickland, 466 U.S. 668, at 690-91. Two lessons flow: (1) listen to your client; and (2) investigate the facts with due diligence. Miner is NOT an aberration, unfortunately. There are many similar scenarios in the appellate pipelines-kudos to the Panel here (thanks to some great appellate advocacy) for taking the "bull by the horns" and calling out what needed to be called out. Hopefully someone in charge is listening.

Appellant was represented by two captains assigned to Trial Defense Service (TDS) at Fort Polk, Louisiana. The Senior Defense Counsel, Captain (CPT) Delta, detailed himself to the case but subsequently detailed a subordinate junior defense counsel as appellant's first chair attorney. This was the first trial the subordinate defense counsel had served as a first chair attorney and only the second trial in which the subordinate attorney had any responsibilities. Leading up to the trial, the attorneys worked as a team, although CPT Delta took a greater role in preparing for the pre-sentencing proceedings, while the subordinate defense counsel focused on the merits phase of appellant's court-martial, under CPT Delta's
guidance and supervision. 

At appellant's court-martial, the government called three witnesses: PV2 JC, her roommate who testified that PV2 JC was upset the next morning and to viewing a text where appellant "apologized" the next morning, and another witness who testified that PV2 JC was annoyed and to overhearing some of a phone conversation between PV2 JC and appellant and him "apologizing" the next day. 5 The defense also called three witnesses: appellant's roommate, PFC TL, and two witnesse6s who saw either PV2 JC or appellant the morning after the incident. On the advice of counsel, appellant did not testify in his own defense and they did not call character witnesses during the merits phase of the court-martial. 6

n. 4. To emphasize the expansive nature of the DuBay hearing, we note the transcript for that hearing was over six hundred and thirty pages while appellant's court-martial only comprised a little over two hundred and fifty pages. 

n. 6. ​There is evidence of repeated discussions regarding whether appellant would testify and appellant did engage in the standard colloquy regarding his decision not to testify with the military trial judge. There is no evidence to indicate defense counsel were prepared for appellant's testimony, should he have changed his mind and exercised his rights to testify in his own defense.

T​he hard question before this Court is not whether appellant's counsel were ineffective in several areas (they were); but rather to assess the level to which their failures prejudiced their client. In order to analyze what, if any, prejudice occurred in this case, we will first discuss the three witnesses the defense presented and we will next turn to the possible exculpatory defense witnesses that were not presented as contrasted against the government evidence.
. . . 
Defense's entire theory of the case focused on PV2 JC's credibility. Along those lines, defense specifically proffered that PV2 JC alleged that she continually said "no" to appellant and continued to get louder, but no one heard her. During cross-examination, PV2 JC testified that she was not screaming but she was loud enough that appellant's roommate could have heard it. As previously discussed, PFC TL testified that he never heard PV2 JC say "no," but the probative value of his testimony was undermined by the government because of his headphone usage. We now turn to discuss an additional, but undiscovered (at least by appellant's trial defense counsel), defense auditory witness.

Specialist DW described the layout and acoustics of the rooms, stating he could generally hear "everything" in appellant's space, to include appellant brushing his teeth and cooking meals. Specialist DW was present in his room on the night of the alleged assault and was awake until approximately 0400 because he suffered from untreated insomnia.

n.9. Further, an additional defense auditory witness, Sergeant (SGT) NP, who lived directly across the hall from appellant testified at the DuBay hearing that it "was pretty easy to hear in the barracks" and if "someone was yelling or screaming or talking very loudly" that he could have heard it. Sergeant NP's DuBay testimony corroborated PFC TL and SP DW's testimony and he could have served as a third defense witness to testify regarding the auditory conditions near appellant's barracks room.