SCOTUSblog notes several pending petitions of interest, perhaps even to the MJ community.
They begin comment on Deveraux v. Montana with
The Supreme Court has ruled that the seating of a biased juror can violate the constitutional right to an impartial jury. It has stopped short, however, of holding that the violation is so stark as to constitute a “structural error” requiring automatic reversal under the Sixth Amendment, and state courts are divided over whether it rises to that level. This week, we highlight cert petitions that ask the court to consider, among other things, whether the seating of a biased juror is the type of error that always requires a new trial.
The actual issue presented is
Whether a trial court commits structural error, requiring automatic reversal under the Sixth Amendment, when it seats a biased juror after erroneously denying a for-cause challenge to that juror.
In Moore v. Texas, from the petition:
A Texas statute criminalizes sending repeated electronic communications with the intent and likely result of “harassing, annoying, alarming, abusing, tormenting, embarrassing or offending” another. Because the law would be violated by the repeated sending of communications that contain no expressive content, like a blank email, the Texas Court of Criminal Appeals concluded that it “proscribes non-speech conduct” and does not implicate the First Amendment, even though the law would in most cases be violated by the repeated sending of expressive communications. The court thus rejected Petitioners’ facial overbreadth challenges to the criminal statute. The questions presented are:
1. Is a law that criminalizes expressive speech immunized from any First Amendment scrutiny if it also criminalizes non-expressive conduct?
2. Is a law that punishes the repeated sending of electronic communications with intent and likely result to “harass, annoy, alarm, abuse, torment, embarrass, or offend” another unconstitutionally overbroad?
The court has relisted Counterman v. Colorado. Here is SCOTUSblog's (edited) comment.
It is well known that the First Amendment does not protect speech that constitutes a “true threat.” But the court has never said all that clearly what a “true threat” is. The closest the court has come is Virginia v. Black, where the court wrote that true threats “encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence.” The court granted review in Elonis v. United States to resolve an acknowledged circuit split “on the question whether proof of a true threat requires proof of a subjective intent to threaten,” or whether it is enough that an “objectively reasonable person would view [the] message as [a] serious expression of intent to harm.”
The ACCA decided United States v. Pritchard & Dial (RPI). The court granted the Government its requested relief.
We now have a writ-appeal petition in Dial v. United States & Pritchard, docketed with CAAF on July 13, 2022.
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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