On 31 March 2025, the U.S. Supreme Court denied his Petition for a Writ of Certiorari to the U.S. Court of Appeals for the Armed Forces. The Supreme Court’s denial of a writ of certiorari is not a decision on the merits. See United States v. Carver, 260 U.S. 482, 490 (1923); Evans and Jordan v. Stephens, et. al., 544 U.S. 942, n.1 (2005).

(For CAAF's treatment of denied petitions for review, see United States v. McGriff, 78 M.J. 487 (C.A.A.F. 2019) ("although [denial of a petition] allows  the  decision  below  to  stand,  [it] does  not  suggest  that  we  either  agree  or  disagree with the merits of a lower court’s resolution of the case.").)

As of today, a PACER search in the U.S. District Court for the District of Kansas does not show a petition for a writ of Habeas Corpus under 28 U.S.C. 2241 or other filings.

Absent a petition and a (granted) motion for a stay of execution, the execution may proceed. Justice Gorsuch, under Supreme Court rules established under 28 U.S.C. 42, may grant a stay of execution, although either the D.C. Kan. or the 10th Circuit may also do so.

DHS notes Gray v. Curtis, No. 5:18-cv-03305-EFM (D. Kan.). The case is before the district court on remand from the U.S. Court of Appeals for the Tenth Circuit. He initially filed his petition in December 2018. On 10 September 2026, the Government moved to substitute COL Sergent for COL Curtis (not the other death penalty Curtis).

Private Bennet was the last service member to be executed in 1961. Two recent Army Lawyer articles may be of interest.

Dwight H. Sullivan, The Man Behind the SCOTUS Military Justice Case Names: Warden Jacob J. Parker. Army Lawyer (1), 2026.

Major Alexandria J. Altimas and Major Allyson J. Montgomery, From Soldier to “Condemned Prisoner:” A Review of Modern Military Death Sentence Procedure. Army Lawyer (1), 2026.

CAAF's Daily Journal notes today that three cases carried over from last year's season: Nelson, Thompson, and Slayton. A bit more angst for those hanging by a thread awaiting Nelson.

Nelson, perhaps the more important of the three because of the oft-repeated appearance of the issue in records, asks: DID THE DEFENSE COUNSEL’S MERE FAILURE TO OBJECT WHEN THE MILITARY TRIAL JUDGE DID NOT EXECUTE HIS SUA SPONTE DUTY TO INSTRUCT ON ALL REASONABLY RAISED DEFENSES DID NOT AMOUNT TO AN AFFIRMATIVE WAIVER OF THE RIGHT TO HAVE A PANEL INSTRUCTED ON ALL REASONABLY RAISED DEFENSES?

The other two are both Certified ones.

Slayton asks (apparently not set for argument yet, Certificate filed 29 December):

I. DID THE AIR FORCE COURT OF CRIMINAL APPEALS ERR BY FINDING APPELLEE'S CONVICTION FACTUALLY INSUFFICIENT, IN PART, BASED ON MISTAKE OF FACT AS TO CONSENT, WHEN APPELLEE DID NOT IDENTIFY OR ARGUE MISTAKE OF FACT AS TO CONSENT AS A SPECIFIC DEFICIENCY IN PROOF IN HIS APPEAL?
 
II. DID THE AIR FORCE COURT OF CRIMINAL APPEALS ERR IN APPLYING UNITED STATES v. MENDOZA, 85 M.J. 213 (C.A.A.F. 2024) TO FIND APPELLEE'S SEXUAL ASSAULT CONVICTION FACTUALLY INSUFFICIENT?
 
III. DID THE AIR FORCE COURT OF CRIMINAL APPEALS ABUSE ITS DISCRETION BY FAILING TO GIVE APPROPRIATE DEFERENCE TO THE FACT THAT THE TRIAL COURT SAW AND HEARD THE WITNESSES AND OTHER EVIDENCE?

Thompson asks WHETHER THE SPECIAL FINDINGS WARRANT REVERSAL OF APPELLANT’S CONVICTION FOR INVOLUNTARY MANSLAUGHTER. Interesting. A first real look at how special findings work?

United States v. Marshalek, __ M.J. ___, ARMY 20240324 (A. Ct. Crim. App. Sept. 28, 2026), provides an interesting answer.

The case matters because ACCA answers Gilmet's unanswered question about apparent UCI and the evidentiary standard of Article 37.

Marshalek’s lead military defense counsel had represented him for more than six months and devoted 215 hours to his defense. She came to believe that continuing to represent him zealously could affect her next Army assignment, her professional reputation, and her military career. She told the military judge that the perceived conflict between her interests and Marshalek’s interests would affect the quality of her representation.

It all seems to have started at trial when counsel suggested the prosecution had been unethical. The prosecution wanted to counter-claim against her. Trial Counsel was from 1st SFC(A), which is were defense counsel was slated to go. These events set off a chain of communications, ACCA calls  

Later litigation established that counsel’s perception of the threat to her career was mistaken.

ACCA holds that her reasonable belief mattered even though the perceived threat ultimately proved unfounded. Relying on United States v. Hardy, 44 M.J. 507 (A.F. Ct. Crim. App. 1996), ACCA says the proper inquiry is not whether there is proof of an actual conflict. It is what the attorney believed. If counsel reasonably believes her personal interests will materially affect her representation, that perception can supply good cause to sever the attorney-client relationship over the client’s objection.

That makes Marshalek more significant than a case about a misunderstanding over an assignment. A military defense counsel believed that her advocacy for a client could affect her career. That belief affected her ability to continue representing him. And Marshalek lost the lawyer he wanted to keep.

After which, he hired civilian counsel.

But that is not the most important point. The important point is that she believed the threat was real.

An enlisted panel convicted McDowell of seven specifications of sexual abuse of a child and sentenced him to thirty-six years of confinement, a dishonorable discharge, forfeiture of all pay and allowances, and reduction to E-1. ACCA summarily affirmed the findings and sentence in December 2025 and later denied reconsideration.

The defense theory at trial was that someone else committed the offenses. The SODDI defense. Specifically, the defense identified the alleged victim's older half-brother, Caleb, as the alternative perpetrator.

After investigators seized the alleged victim's blanket, DNA testing did not find any from the appellant. Instead, testing identified semen from Caleb, not McDowell. According to the defense, the blanket belonged to the alleged victim, she slept with it every night, and it was found on her bed.

The defense sought to introduce evidence concerning Caleb's prior behavior, including violence and sexual behavior, as part of its effort to explain why the alleged victim might have accused McDowell rather than Caleb. Caleb died by suicide shortly before trial and left a farewell message expressing regret that he had "done a lot of bad things."

The military judge excluded significant portions of the evidence. That produced the two questions McDowell now asks CAAF to review.

A two-part look at CCA panel composition and United States v. Forrest

Kruse is the Court’s first construction of Article 24a, UCMJ, 10 U.S.C. § 824a. The holding fits in one sentence: when the Office of Special Trial Counsel (OSTC) takes jurisdiction over a covered offense but then defers disposition, a convening authority may refer charges based on the same conduct so long as the charges allege non-covered offenses. Judge Johnson wrote for a unanimous Court. Slip op. at 7-10. After Kruse, an OSTC decision not to prosecute a covered offense ends the covered charge, not necessarily the case arising from the same conduct. The command can still charge a non-covered Article.

The facts.

In September 2024, police responded to a domestic disturbance at Cpl Kruse’s home. His wife reported that, while drunk, he had strangled her several times and pushed her down the stairs; neighbors heard yelling and her cries for help. The next day, the OSTC asserted authority over the reported domestic violence under Article 128b, UCMJ, 10 U.S.C. § 928b, as well as lesser-included and related offenses. On February 20, 2025, the OSTC sent the commanding officer a notice of initial disposition finding probable cause but concluding that the admissible evidence did not satisfy its standard for obtaining and sustaining a conviction. The OSTC did not simply decline to charge. It deferred all allegations of covered offenses and all other known or related offenses to the commanding officer for resolution. Slip op. at 4; United States v. Kruse, 86 M.J. 556, 557 (N-M. Ct. Crim. App. 2026).

The GCMCA charged the assaults on April 22, 2025, with an additional drunk-driving charge on June 11. Answer at 2; Supp. to Pet. at 5 n.16 (citations are to the Government’s Answer and the Supplement to the Petition filed at CAAF). The convening authority first referred aggravated assault, assault consummated by a battery, drunken operation of a vehicle, drunk and disorderly conduct, and violation of a military protective order to a general court-martial. Before arraignment, the parties entered a plea agreement. Kruse agreed to plead guilty to the three minor offenses at a special court-martial, with concurrent confinement terms of thirty to sixty days. The convening authority agreed to withdraw and dismiss the Article 128 charge and specifications without prejudice, with the dismissal to ripen into prejudice upon completion of appellate review. Slip op. at 4-5; 86 M.J. at 557.

Also before arraignment, the military judge (MJ) sua sponte asked the Government: whether R.K. was Kruse’s spouse at the time of the charged offenses, whether the OSTC had found a covered offense, whether it had exercised authority over any charged offense as a known or related offense, and whether it had deferred. The Government answered yes to all four. 86 M.J. at 557. The defense then moved to dismiss the Article 128 charge and specifications and the MPO charge. On August 20, 2025, the MJ granted the motion as to the assaults and denied it as to the MPO charge, which the OSTC had never taken. Answer at 1, 3-4; Supp. to Pet. at 3. He reasoned that the reported conduct “remains a covered offense even after deferral by the OSTC” and that no rule or statute lets a separate organization “sidestep the statutory and rules construct through clever charging decisions.” Slip op. at 5; 86 M.J. at 558. The Government noticed its Article 62 appeal three days later. Answer at 1; Supp. to Pet. at 4. The Navy-Marine Corps Court of Criminal Appeals (NMCCA) heard argument on December 18, 2025, and reversed on January 21, 2026, based on the statute’s plain text, returning the case for further proceedings. 86 M.J. at 559-60. At NMCCA argument, neither side claimed the statute was ambiguous. 86 M.J. at 559 n.25; Answer at 26. CAAF granted review on April 20, 2026, and affirmed. Article 1(17), UCMJ, 10 U.S.C. § 801(17), contains a closed list of covered offenses. Article 128 does not appear on that list, and the negative-implication canon resolves the question. Slip op. at 8. The relevant distinction is not whether the factual episode is the same, because the alleged strangulation is, but whether the charge command selected falls outside the Article 1(17) list. Kruse argued that this reading would let a commander evade the OSTC’s authority by relabeling a declined rape as a battery. Citing Taylor and McPherson, CAAF answered that the absurdity doctrine applies only when a result is “so gross as to shock the general moral or common sense.” Congress had to draw the line somewhere; the line it drew does not meet that demanding standard. Slip op. at 9-10. Congress remains free to draw a different one.

Question one: if the OSTC thought it could not win, why can the convening authority try?

Different questions, different answers. The OSTC asked itself whether the admissible evidence would get a conviction on the covered offense and keep it on appeal. A convening authority never has to ask that. Rule 601(d)(1) asks only whether there is probable cause, R.C.M. 601(d)(1)(A), and then sends the commander to the disposition factors in R.C.M. 601(d)(1)(B)(2) and Appendix 2.1: the victim’s views, the seriousness of the offense, and the rest. A commander who works through that list can land on referral for the very charges the OSTC handed back, and nothing in the rules stops the commander.

That gets the commander only partway. Article 128b reaches a violent offense against a spouse, intimate partner, or immediate family member. Strangulation constitutes aggravated assault under Article 128(b)(2). Thus, Article 128b adds a relationship element to Article 128, and the OSTC’s initial notification asserted authority over “[a]ll covered offenses and lesser included offenses.” 86 M.J. at 557. Under R.C.M. 306A(a), once the OSTC exercises authority over an offense, only the OSTC may dispose of it unless the OSTC defers. Hence, the Article 128 offenses were themselves offenses the OSTC took and then handed back. 86 M.J. at 559. Nobody disputed the marriage. 86 M.J. at 557. So if the relationship element was safe, the reader is left to guess that the OSTC’s worry was the assault itself, the same conduct the commander then charged under Article 128. The opinion never says what the evidentiary problem was. Maybe it was something peculiar to the covered-offense theory. Maybe an admissibility problem. Maybe the wife would not testify. We do not know, and neither does CAAF on this record.

The statute allows it, and CAAF has now said as much. What Kruse comes down to in practice is this: a deferral ends the OSTC’s pursuit of the covered offense, and that is all it ends. The command may still charge a non-covered offense arising from the same conduct, much as a civilian prosecutor can drop the greater offense and leave the lesser one on the table. Both briefs accept that much. Kruse cited Blockberger and Teters for the proposition that a lesser included offense is the same offense as the greater; the Government argued United States v. Henderson, 59 M.J. 350 (C.A.A.F. 2004), where referral of a jurisdictionally barred greater offense did not carry the lesser with it. Supp. to Pet. at 24; Answer at 22 n.6. CAAF did not engage with either line.

But the reform promised to remove covered-offense charging decisions from the chain of command. Did Congress intend to preserve that much command authority? The legislative history in the briefs, which CAAF did not reach, cuts both ways. Kruse quoted Senator Reed on the Senate floor: no commander could overrule the binding decision of a special trial counsel to prosecute or not prosecute a case. Supp. to Pet. at 11. The Government countered with the drafting history of Article 1(17). The Independent Review Commission proposed three categories of special victim crimes: a list of specified offenses, a “trait of victim” category keyed to the victim’s age, disability, or relationship to the offender, and an “intent of offender” category. The Department told Congress it would accept only the first. Answer at 23-24.

A Senate amendment, S. Amdt. 4892, would have brought certain Article 128 violations into the covered list; Congress did not adopt it. Answer at 24. The Commission itself said a commander’s post-deferral authority should reach only crimes “completely unrelated” to the special victim crimes in the case, language Congress did not write into the statute. Supp. to Pet. at 9; Answer at 25. The Government’s point was simple: Congress had a relationship-based definition on the table, one that would have swept in this case, and chose to define covered offenses by Article number instead.

​Question two: Was there a case in controversy supporting the Article 62 appeal?

The plea agreement required the convening authority to withdraw and dismiss the Article 128 charge and specifications without prejudice, with the dismissal to ripen into prejudice after appellate review. So the better question is not whether CAAF issued an advisory opinion, but what continuing controversy supported the Government’s Article 62 appeal after the parties agreed to dismiss the assault specifications.

A likely answer is timing and leverage, inferred from the agreement’s terms. The agreement made dismissal part of the Government’s promised performance; the MJ’s ruling supplied that benefit independently of the agreement. Kruse could withdraw from the plea agreement before the MJ accepted it. He might have abandoned the bargain and contested the three minor charges without facing the assault charges. A second difference is harder. Under the agreement, the dismissal was without prejudice and would not ripen into prejudice until appellate review ended. The MJ’s dismissal rested on something else entirely: a holding that the convening authority had no power to refer the charges in the first place. If the deal collapsed, that holding would have blocked any re-referral. 86 M.J. at 557-58. So the Government had something to protect. It did not want Kruse pocketing the dismissal before he performed his side of the bargain, and it did not want a ruling from the bench turning a without-prejudice dismissal into a permanent one. That is a live interest, not a request for an advisory opinion, and Article 62(a)(1)(A) exists so the Government can get a dismissal corrected before jeopardy attaches and review becomes impossible. The posture is still odd.

Should a TC or DC at trial (including their supervisors) automatically recuse themselves when they move over to become the SJA responsible for post-trial actions? Why can't that be an automatic move? But if recusal does not happen, should it matter?