No. 22-0129/AR. U.S. v. Nicholas R. St. Jean. CCA 20190663. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
WHETHER THE MILTIARY JUDGE ERRED BY EXCLUDING EVIDENCE UNDER MIL. R. EVID. 412 AND BY PREVENTING THE DEFENSE FROM PRESENTING EVIDENCE OF PARTICIPATION AND CONSENT DURING THE RES GESTAE OF THE CHARGED SEXUAL ASSAULT.
ACCA decided the case of United States v. St. Jean in January this year. Was the issue a Grosty?
No. 22-0065/NA. U.S. v. Willie C. Jeter. CCA 201700248. 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 CONVENING AUTHORITY VIOLATE APPELLANT'S EQUAL PROTECTION RIGHTS, OVER DEFENSE OBJECTION, WHEN HE CONVENED AN ALL-WHITE PANEL USING A RACIALLY NONNEUTRAL MEMBER SELECTION PROCESS AND PROVIDED NO EXPLANATION FOR THE MONOCHROMATIC RESULT BEYOND A NAKED AFFIRMATION OF GOOD FAITH IN SPITE OF A DEFENSE OBJECTION?
NMCCA's opinion in United States v. Jeter, __ M.J. ___ (N-M Ct. Crim. App. 2021).
Update 21032022: The ACCA has scheduled oral argument en banc in Dial. for April 14, 2022, on the following issue.
WHETHER THE MILITARY JUDGE ERRED WHEN GRANTING DEFENSE’S MOTION FOR APPROPRIATE RELIEF REQUIRING THE PANEL TO HAVE A UNANIMOUS VERDICT FOR ANY FINDING OF GUILTY AND TO MODIFY THE INSTRUCTIONS
On March 17, 2022, the Air Force Court of Criminal Appeals decided United States v. Westcott, No. ACM 39936, 2022 CCA LEXIS 156 (A. F. Ct. Crim. App. Mar. 17, 2022) (memorandum op.), at least one judge of the court would hold that the Appellant was denied the right to a unanimous “jury” finding of guilt. Slip op. at *108.
A general court-martial panel (jury) need only have a six out of eight votes for guilt. Should that change because a nonunanimous "jury" is unconstitutional in all state and federal courts since Ramos v. Louisiana?
Prof. Vladeck had raised the issue in a supplement to a petition for review in United States v. Scott, an AF case. Document here. The petition was denied March 3, 2022.
On February 24, 2022, the ACCA specified this issue in the Dial case,
Brief--Government Petition for Writ of Prohibition in Dial.
Brief--Government Supplement to the Writ-Petition
Here is the brief in opposition to the Writ petition.
Here are links to the POD amicus filings. Query: does United States v. Matthews, 16 M.J. 354 (C.M.A. 1983) have any relevance?
United States v. Ferreira. ARMY MISC 20220034 (A. Cr. Crim. App. Jan. 28, 2022) The government has filed for and received a stay of proceedings in this case based on the "Dial" issue. The government also petitioned for a Writ of Prohibition. Likely the petition is similar to that filed in Dial.
A petition has been filed in United States v. Dial, ARMY MISC 20220001 (A. Ct. Crim. App. Jan. 4, 2022)..
A reader has suggested reviewing R. v. Thwaite,  WLR 1125,  EWCA Crim 2973,  1 WLR 1125,  1 Cr App Rep 19,  1 Cr App R 19.
MAJ Hugh E. Henson, The Hung Jury: A Court-Martial Dilemma. 35 MIL. L. REV. 59 (1967).
No. 22-0098/AF. U.S. v. Chase M. Thompson. CCA 40019. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
DID THE COURT OF CRIMINAL APPEALS ERR BY REQUIRING THAT APPELLANT INTRODUCE DIRECT EVIDENCE OF HIS SUBJECTIVE BELIEF TO MEET HIS BURDEN FOR A REASONABLE MISTAKE OF FACT DEFENSE?
The Air Force Court of Criminal Appeals decision is at this link.
The CAAF has previously held that an accused is not required to testify in order to establish a mistake of fact defense. United States v. Jones, 49 M.J. 85, 91 (C.A.A.F. 1998).
The AFCCA appeared to approve of Jones in the unpublished decision of United States v. Roblero, No. ACM 38874, 2017 CCA LEXIS 168 (A. F. Ct. Crim. App. Feb. 17, 2017). Or at least no issue was made of the appellant’s decision not to testify.
The Navy-Marine Corps Court of Criminal Appeals seems to have followed a similar path in United States v. Thomas, No. NMCCA 201200203, 2013 CCA LEXIS 49 (N-M Ct. Crim. App. Jan. 31, 2013).
The Army Court of Criminal Appeals in United States v. Clark, ARMY 20160304, 2018 CCA LEXIS 505 (A. Ct. Crim. App. Oct. 12, 2018) had this to say in the footnote.
In any event, we find no error, plain or otherwise. To warrant an instruction on the mistake of fact defense there must be "some evidence of an honest and reasonable mistake to which the members could have attached credit if they had so desired." United States v. Hibbard, 58 M.J. 71, 75 (C.A.A.F. 2003). While there is no per se requirement an accused testify to establish a mistake of fact defense, evidence that the accused honestly and reasonably believed the victim had consented must come from somewhere. See United States v. Jones, 49 M.J. 85, 91 (C.A.A.F. 199). In many cases, the only source of admissible evidence about an accused's subjective belief may well be from the accused himself.
If AFCCA is correct in Thompson, that puts the accused between Scylla and Charybdis having to choose between testifying or remaining silent while hoping there is sufficient evidence to warrant the instruction without his testimony?
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