Opinion in Dial. However, we are ultimately more persuaded by the second basis which contends Congress determined that unanimous verdicts would unduly impede the efficiency of military operations. That is to say, deliberations towards unanimous verdicts are likely to take longer to achieve, thereby keeping participants from their military duties for reater periods of time. See Revision of the Articles of War, United States Senate, Subcommittee on Military Affairs, Statement of Brig. Gen. Enoch H. Crowder, United States Army, Judge Advocate General of the Army (1916), p. 27 [1916 Hearing]. Most importantly, when a unanimous verdict cannot be reached and a hung jury results, the command is faced with the prospect of either engineering a retrial or returning a service member with unresolved charges to its ranks. A verified commenter says, The fear of a hung jury, as an impediment to military efficiency, is wrong. The issue is a unanimous verdict to convict, not a unanimous verdict to acquit. The court footnotes the issue and says they are unaware of any other court in the country where a single vote for acquittal results in an acquittal. Perhaps, but there is no other court that convicts on a non-unanimous vote. The equal protection analysis is a different ballgame for the accused who are convicted under Art. 134, Clause 3 offenses. That is not the issue here but it's the issue in other pending cases. The military efficiency rationale won't hold up in these cases. Cheers, Phil Cave.
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United States v. Wilkinson. Appellant was convicted, by a military judge, in absentia of indecent viewing, attempted indecent viewing, two sexual abuses of a child, and indecent exposure. The MJ sentenced him to three years and a dismissal. ACCA had to decide whether the Appellant was voluntarily absent and burdens of proof. The court was satisfied trial could proceed in the Appellant's absence. On a different note. It is not clear from the opinion when, if ever, the Appellant elected MJA. We know that forum is one of the four or five decisions only the accused can make. The R.C.M. 804 in effect says the accused "shall" be present and that the trial is his "place of duty." Once arraigned, trial may proceed if the accused's absence is voluntary. R.C.M. 903 regulates forum selection. The Discussion to Rule 903(a) says that "If an accused makes no forum selection, the accused will be tried by a court-martial composed of a military judge and members, as specified in the convening order." This is what we old folks called the default. But see, as did ACCA, United States v. Chandler, 80 M.J. 425, 429, n.2 (C.A.A.F. 2021) ("The provisions of a discussion section to the R.C.M. are not binding but instead serve as guidance."). R.C.M. 903(b) requires a written election or one made on the record. See also UCMJ art. 16(b)(3). R.C.M. 903(c)(2) requires affirmative action by the MJ to ensure an election for MJA is voluntary. United States v. Amos, 26 M.J. 806 (A.C.M.R. June 24, 1988); United States v. Jungbluth, 48 M.J. 953 (N-M. Ct. Crim. App. 1998) are of some help with my question. I acknowledge it's entirely possible that the Appellant had elected forum on the record before he went UA to some other place. It would seem proper then, if that's the case for a MJA trial to proceed. Cf. United States v. Stiner, 30 M.J. 860, 861 (N.M.C.M.R. 1990). Does anyone know when and how forum was selected in this case? If no written request or oral request on the record, perhaps United States v. Turner, 45 M.J. 531 (N-M. Ct. Crim. App. 1996) might be helpful in finding that the trial could not proceed MJA. See also, United States v. Mozie, No. 20130065, 2016 CCA LEXIS 273 *1 n.1 (A. Ct. Crim. App. Apr. 28, 2016). In United States v. Sharp, 38 M.J. 33 (C.M.A. 1993), cited by ACCA, the accused was tried by members. The court concludes that, In sum, the question before us is not whether we think it is more likely that appellant perished in the mountains or voluntarily absented himself from his trial. Rather, we can only provide relief if we find that the military judge's ruling constitutes an abuse of discretion. See Gore, 60 M.J. at 187 ("[T]he abuse of discretion standard of review recognizes that a judge has a range of choices and will not be reversed so long as the decision remains within that range.") (citation omitted). As such, based on our review of the entire record and for all of the reasons stated above, we conclude that the military judge did not abuse his discretion in: (1) finding that the government met its burden to prove by a In United States v. Pietr Lewis, the court agreed that it was error to admit a company grade UCMJ art. 15 punishment in sentencing, over defense objection. The 15 was from a prior duty station when he was a PFC. It appears Army Regulation 27-10 para. 3-37b(1) (their JAGMAN) required destruction of the 15 once he PCS'd. However, the TC relied on the 15 being maintained in a Military Justice Online database for up to two years, IAW 27-10 para. 3-37h. Appellant pled guilty to involuntary manslaughter and was sentenced to 42-months, RiR, and a DD. On 11 June 2020, appellant and a group of fellow soldiers went out to a few bars to socialize. Appellant, being under 21, was one of the designated drivers. By the end of the evening, only appellant and the victim remained at the bar. Despite being under the legal drinking age of 21, and a designated driver, appellant consumed "about five to seven drinks" that evening. The court having found error, found prejudice and reassessed the sentence to 36-months, RiR. and a DD.
United States v. Soler. Appellant pled guilty to six instances of obstructing justice condensed into one specification. As part of a PTA, the government dismissed two sexual assaults, one indecent recording (his extramarital sex with a junior Soldier), and a general order violation. Appellant was sentenced to six months, RiR, and a BCD. The CA only approved an RiR to E2, per the PTA. On appeal the Appellant claimed IAC for failing to "present evidence pertaining to his ten years of service in the Army, moving for admission of his enlisted record brief (ERB), or presenting evidence of appellant's combat-related [X] diagnosis." After reviewing the case and affidavits provided by defense counsel, the court finds no error or prejudice. The defense had prepared a sentencing case by interviewing witnesses, getting documents, and getting the Appellant's medical records. But the decision was made to give only an unsworn statement. The TC submitted no documents in sentencing and the defense submitted some personal photographs. Interestingly, the MJ asked the Government if they would provide the ERB, an invitation the TC declined. Slip op. at 2. Query, could the MJ have ordered the TC to produce the ERB as a court exhibit? Can the military judge order the Government to produce the whole official service record, subject to objections from defense? If then introduced, could the TC try to offer aggravation evidence based solely as rebuttal to the ERB? Affidavits from appellant's military and civilian defense counsel outlined their efforts in preparing both character and mitigation evidence for the pre-sentencing hearing and the tactical reasons for ultimately editing the presentation of that evidence. Appellant's military defense counsel submitted an affidavit stating she interviewed several family members, friends, supervisors, and colleagues of appellant and prepared those witnesses to testify at appellant's presentencing hearing. Concerned that good soldier evidence would allow the government to present evidence of appellant's prior misconduct of an unfounded allegation of and obstruction of justice, civilian defense counsel requested this testimony be reduced to written statements. What was the concern? In 2013, appellant was investigated for the offense of [X]. While the [X] was unfounded, there was evidence in the investigation that appellant made efforts to obstruct justice during the investigation by asking a witness not to talk to the military. Appellant's witness production request included ten witnesses, both military and civilian, that appellant asserted would testify as to his rehabilitative potential during the pre-sentencing hearing. Given that appellant plead guilty to obstruction of justice approximately five years after his prior attempt to do so was relevant information as to both appellant's good military service and rehabilitative potential. The government could have utilized appellant's prior efforts to obstruct justice by: (1) cross-examining his character witnesses about this prior misconduct in order to test the strength of their opinion as to his rehabilitative potential, or (2) presented the information as rebuttal evidence concerning appellant's rehabilitative potential or good military service. See Scott, 81 M.J. at 86 (C.A.A.F. 2021) ("[R]ecogniz[ing] that, in some cases, trial defense counsel may not wish to call witnesses on sentencing who, through their testimony, may open the door for the government to present additional adverse evidence."). So, in this case, [The] decision to constrain the presentation of character evidence reasonable under the circumstances. See United States v. Datavs, 71 M.J. 424 (C.A.A.F. 2012) (Defense counsel do not perform deficiently when they make a strategic decision to accept a risk or forego a potential benefit, where it is objectively reasonable to do so."). The court did note that even if there was IAC it would not have been prejudicial. Despite appellant's assertions to the contrary, the conduct to which appellant pied guilty was significant in not only attempting to impede a law enforcement investigation but leveraging his rank and position of authority to influence subordinates to commit a criminal offense for his benefit. Even if defense counsel presented the few pages of medical evidence of appellant's - diagnosis in 2017 and appellant's ERB, there is no "reasonable probability" that the sentence would have been any different given the severity of appellant's misconduct. Cheers, Phil CaveCashin was tried and sentenced by an "officer" panel. Findings: G of A&B and obstruction of justice. NG of "multiple" rapes. Sentence: 14 days confinement and a Dismissal. Issue. Abuse of discretion in denial of a member challenge. The court gives lengthy quotes from the voir dire and is helpful in exploring sexual assault policy, commander, and command requirements. [T]he military judge's factual findings were-while perhaps not clearly erroneous-not exactly correct. Between the military judge and trial counsel, the concept of "walling off experiences as a battalion commander was attributed to LTC x multiple times. However, LTC x never used that phrase; rather, it was incorporated into the military Judge's and trial counsel's voir dire questions. The military judge quoted LTC as saying, "At the end of the day, I can wall it off. I can judge this case on the facts." However, LTC did not expressly say this. Findings and sentence set-aside.
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