United States v. Cole[AFCCA] uph[eld the Appellant's] sentence for offenses that he pled guilty to, which included simple assault with an unloaded firearm. Despite finding that the military judge erred during the providence inquiry by “indicating that Appellant was charged with the offense of assault consummated by a battery and in advising and conducting a colloquy on matters that were not part of the charged offense,” [T]he AFCCA concluded that “such errors did not substantially influence Appellant’s adjudged sentence,[and affirmed the sentence]. We disagree and reverse the decision of the AFCCA as to the sentence. Judge Johnson writes for a unanimous bench. [W]e hold that the military judge improperly identified [the] Specification as assault consummated by battery, and his erroneous view of the elements of the offense alleged makes it unclear whether he sentenced Appellant for aggravated assault with a dangerous weapon or simple assault with an unloaded firearm, thereby materially prejudicing Appellant’s substantial right to be sentenced for the correct offense based on a consideration of the nature, circumstances, and seriousness of the offense.
We reject as clearly erroneous the AFCCA’s finding that “[t]he record does not indicate that the military judge considered extra aggravating factors during sentencing.” According to the AFCCA, the military judge knew that the weapon used by Appellant was not a dangerous weapon because it was unloaded, and thus the military judge knew that it could not inflict death or grievous bodily harm. Even though the military judge understood that the firearm was unloaded, his questions to Appellant indicate that he still believed it was a dangerous weapon. Additionally, the military judge improperly advised Appellant that he “must have intended to do the bodily harm.” (Emphasis added.) Then the military judge elicited Appellant’s agreement that his actions met this higher intent standard than what is required for the offer-type simple assault charged. In requiring Appellant to testify that he used a dangerous weapon and intended to do bodily harm, the military judge amplified both the means and the intent beyond what was required for the offense alleged in Specification. CAAF then takes on the standard that a military judge is presumed to know and follow the law meme. Here, there is clear evidence from the military judge’s errors regarding Specification 2 of Charge II that he did not know the applicable law, and thus any presumption that he knew and followed the law is lost. Query: Does Judge Johnson's comment about the military judge apply equally to the trial and defense counsel, who might have sorted this out ahead of time during the plea negotiations, and when either counsel could have objected rather than let it happen? AFCCA does note that the trial counsel did not use any of the "aggravating" circumstances in arguing for the sentence, but perhaps trial counsel had a duty to do justice by clarifying the charge with the military judge, just as the defense counsel had a duty to intercede. In reading AFCCA's 2023 decision, you will see that the error addressed by CAAF was specified by AFCCA. On appeal, Appellant raises two assignments of error, claiming: (1) Appellant’s trial defense counsel were ineffective “for at least six reasons,” specifically when they: (i) failed to request a sanity board under Rule for Courts-Martial (R.C.M.) 706, (ii) failed to adequately investigate Appellant’s traumatic brain injury (TBI) for mitigation, (iii) failed to adequately investigate the impact of Appellant’s alcoholism on the charged offenses, (iv) failed to object to improper evidence and argument presented by trial counsel during presentencing, (v) presented a short sentencing argument that did not effectively lay out a case for leniency at sentencing, and (vi) advised Appellant to waive clemency on an incorrect legal basis; and (2) the military judge’s failure to conduct further inquiry into Appellant’s TBI made his pleas of guilty improvident. The Appellant was sentenced in June 2021, and it is now three years later. One suspects he has served time up to the MRD for his sentence of fourteen months of confinement. He will have to be recalled from appellate leave, thus disrupting any efforts to get his life sorted in the civilian world (unless . . . ).
United States v. KeagoAppellant challenged fourteen potential panel members for actual and implied bias. The military judge granted six of Appellant’s challenges but denied the other eight. Before this Court, Appellant argues that the military judge erred in denying both his actual bias and implied bias challenges against three of the panel members. We first hold that the military judge did not abuse his discretion in denying Appellant’s challenges for actual bias. We also hold, however, that the voir dire responses of two of the members presented close cases of implied bias. Because the liberal grant mandate requires military judges to excuse potential panel members in close cases, the military judge erred by denying those two challenges. The takeaways:
1. The courts apply an objective test to an implied bias challenge. 2. If there is a "close call" on an implied bias challenge, the MJ is "enjoined" to remove the challenged member because they must err on the side of granting the challenge. United States v. Peters, 74 M.J. 31, 33 (C.A.A.F. 2015); United States v. Clay, 64 M.J. 274 (C.A.A.F. 2007). Judge Hardy also writes that the "liberal grant mandate prohibits the MJ from denying the challenge." In a footnote, he explains that some cases have suggested a more limited application of the liberal grant mandate, but those cases are of "little precedential value" after Clay and Peters. 3. A reminder that the liberal grant mandate is unavailable to TC, citing United States v. Clay; United States v. James, 61 M.J. 132, 139 (C.A.A.F. 2005). Judge Sparks concurs and dissents in part. "[T]he Court has applied a standard of review for implied bias challenges that has long been unhelpful and is itself in need of review." Judge Maggs dissents and writes "separately to note that implied bias cases are difficult because our precedents require military judges to decide them using vague and questionable standards." He goes on, "reconsideration of the test for implied bias, the liberal grant mandate, and the standard of review might benefit the military justice system. But until a party asks this Court to revisit our precedents—or until amendments to the Uniform Code of Military Justice or R.C.M. supersede them—we must simply do our best to apply their holdings." Note, the federal courts also will apply its version of implied bias. "Challenges for cause are generally based on actual bias, implied bias, or inferable bias." See United States v. Torres, 128 F.3d 38, 43 (2d Cir. 1997), cert. denied, 523 U.S. 1065 (1998); United States v. Greer, 285 F.3d 158, 171 (2d Cir. 2000). United States v. Velez, 48 M.J. 220 (C.A.A.F. 1998) cites to Torres, 128 F.3d at 45-47 ((distinguishing limited challenges of implied bias per se from more common but permissible challenges of inferred bias). See also, United States v. Napolitano, 53 M.J. 162, 167 (C.A.A.F. 2000) ("We have previously noted the trend in federal circuit courts to distinguish "implied" bias situations from "inferred" bias situations."). Harvey--case to watchOrder Granting Petition for Review: No. 23-0239/NA. U.S. v. Harvey. DID THE LOWER COURT ERRONEOUSLY INTERPRET AND APPLY THE AMENDED FACTUAL SUFFICIENCY STANDARD UNDER ARTICLE 66(d)(1)(b), UCMJ? NMCCA published decision. Regarding factual sufficiency, this is the Court’s first case to address the application of the recently amended Article 66, UCMJ, standard of review. Section 542(e) of the FY 2021 National Defense Authorization Act made the new standard applicable to offenses that occur after 1 Jan 2021. No. 24-0050/AR. Rene D. Alfaro v. Judges of the CCA. CCA 20220282. Petitioner has filed a petition for extraordinary relief in the nature of a writ of mandamus and a writ of prohibition. He asks this Court to issue a writ of mandamus directing the United States Army Court of Criminal Appeals to permit military appellate defense counsel to transmit sealed materials in the record of trial – with the exception of Item Y – to his civilian appellate defense counsel, who now lives in Israel. He also asks this Court to issue a writ of prohibition ordering the same court not to enforce Army Court of Criminal Appeals Rule 6.9 in any matter before that court.
This Court previously issued a writ of mandamus, except for Item Y, providing for access to the sealed materials. Alfaro v. Judges of United States Army Court of Criminal Appeals, No. 23-0258/AR (C.A.A.F. Oct. 24, 2023)(sum. disp.). Next, Petitioner moved the lower court for an order to copy and transmit the sealed items to his civilian counsel. CCA Motion for Leave to Transmit Sealed Materials of 22 Nov 2023. The lower court summarily denied the motion. Petitioner subsequently submitted his most recent writ petition to this Court seeking enforcement of the writ of mandamus. This Court responded by issuing an order to the government to answer the petition and to show cause why a military appellate defense counsel has not been detailed to represent Petitioner. Alfaro v. Judges of United States Army Court of Criminal Appeals, No. 24-0050/AR (C.A.A.F. Dec. 18, 2023)(order). In response to that order, Respondent has filed an answer. On consideration of all pleadings of record, we note that military appellate defense counsel has been detailed to represent Petitioner before the lower court. We further note that technological means exist whereby the sealed materials may be securely transmitted or shared virtually with civilian appellate defense counsel. Accordingly, it is ordered that the petition for a writ of mandamus is granted. Without further delay, the lower court shall permit and facilitate the military counsel to securely transmit or virtually share the sealed materials – except for Item Y – with civilian counsel. The petition for a writ of prohibition as to A.C.C.A. R. 6.9 is denied without prejudice to Petitioner's right to raise the matters asserted during the course of normal appellate review Wednesday, January 3, 2024 Petition for Reconsideration Granted No. 22-0249/CG. U.S. v. Fernando M. Brown. CCA 001-69-21. On consideration of Appellant's petition for reconsideration, it is ordered upon consideration of Appellant's petition for reconsideration of this Court's opinion issued on October 23, 2023, United States v. Brown, __ M.J. __, (C.A.A.F. Oct. 23, 2023), that the petition for reconsideration is granted in part and denied in part, that the Court's judgment is vacated, and that no additional filings are authorized. Further action on the case shall be held in abeyance pending a new decision issued by the Court. Brown is the one published opinion in this new term and is here. The request for reconsideration is here. The amended decision is here. Tuesday, September 26, 2023
Orders Granting Petition for Review No. 23-0204/MC. U.S. v. Thomas H. Tapp. CCA 202100299. 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: WAS APPELLANT DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO AN IMPARTIAL JUDGE? Appellant's redacted brief NMCCA Opinion, __ M.J. ___ (N-M. Ct. Crim. App. 2023). Brown is the kick-off opinion for the new term. Chief Judge OHLSON announced the judgment of the Court, in which Judge SPARKS, Judge MAGGS, Judge HARDY, and Judge JOHNSON joined in part. Judge SPARKS filed a separate opinion concurring in part and dissenting in part, in which Judge JOHNSON joined. Judge HARDY filed a separate opinion concurring in part and dissenting in part, in which Judge MAGGS joined in part. Sometimes a seemingly simple statute can be devilishly difficult to interpret. As reflected by the various opinions in this case, that certainly is true with Article 91(3), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 891(3) (2018), which prohibits disrespect towards a warrant, noncommissioned, or petty officer. Nonetheless, this case resolves two key points. First, a majority of this Court holds that an accused servicemember can be convicted under Article 91(3) even if his or her disrespectful conduct occurs outside the physical presence of the victim. Importantly, that means that disrespectful language or behavior towards a warrant, noncommissioned, or petty officer can be criminally actionable even when it is remotely conveyed using a digital device such as a smartphone and even when the disrespectful language or behavior is conveyed via social media. And second, a majority of this Court holds that under Article 91(3), servicemembers can only be held criminally liable if at the time they conveyed the disrespectful language or behavior the victim was then in the execution of his or her office. The reasons for these conclusions are explained below. The opinion does not seem to change the law on disrespect to a senior enlisted person, rather it applies the statutory definitions to social media and other forms of digital communication. Therefore, we hold that disrespectful language or behavior towards a warrant, noncommissioned, or petty officer can be criminally actionable even when it is remotely conveyed using a digital device and even when the disrespectful language or behavior is conveyed via social media In United States v. Harrington, the court decided three issues. (1) Was the evidence of communicating a threat legally sufficient? It was the court decided and affirmed the findings. (2) Did the military judge err in denying a defense request that the members be informed of the maximum punishment for each specification of which convicted? It was the court decided. In this case the members were deciding a unitary sentence. The military judge abused his discretion in denying Appellant’s request for an instruction on the maximum punishment for each individual offense because he did so based on an incorrect understanding of the law. Contrary to the military judge’s apparent understanding, he possessed the discretion to instruct the panel on the maximum punishments available for each individual offense, in addition to informing them of the maximum cumulative punishment available for all offenses. The nub of the issue related to the maximum sentence for involuntary manslaughter was ten years.
And the court observed that "Further review of the record of trial demonstrates that Appellant’s concerns were not unfounded."
The effect of denying the instruction was the inability of the defense to argue that the President has set ten years as the maximum for involuntary manslaughter. The Appellant was sentenced to 14 years of confinement. Given the focus placed on the involuntary manslaughter conviction by the Government during sentencing and under the specific facts of this case, we cannot be confident that the military judge’s denial of the requested instruction did not substantially influence the adjudged sentence. (3) Was it an error for the victim's parents to give their unsworn statements through questions and answers from the trial counsel? The defense had objected to the procedure. Once again, this Court is presented with the question whether a novel approach toward the delivery of a victim’s unsworn statement exceeds what the President has authorized under R.C.M. 1001(c)(5), and again we conclude that it does. See Edwards, 82 M.J. at 241 (finding reversible error when the military judge allowed the victim’s designee to present his unsworn victim statement in the form of a video slideshow set to background music). Presentation of the victim’s unsworn statement via a question-and-answer format with trial counsel violates the Rules for Courts-Martial because it contravenes the principle that an unsworn victim statement belongs solely to the victim or the victim’s designee. Id. (first citing United States v. Hamilton, 78 M.J. 335, 342 (C.A.A.F. 2019); and then citing Barker, 77 M.J. at 378). The court found the errors prejudicial and set aside the sentence. On a separate note, Although the interests of victims and the government often align, we note that this is not always the case. See, e.g., United States v. Horne, 82 M.J. 283, 289-90 (C.A.A.F. 2022) (holding that trial counsel committed unlawful command influence when she instructed investigators not to interview the victim’s husband at the special victims’ counsel’s request). Judge Maggs concurs and dissents in part. He agrees the evidence was legally sufficient, but he disagrees with the prejudice finding and would affirm the findings and sentence.
United States v. CunninghamOf three issues, the Court wrote on a victim impact "statement" issue and an improper sentencing argument. Whether trial counsel’s sentencing argument was improper when she: (1) argued that Appellant’s uncharged, false statements were aggravating evidence after she had previously cited case law to the military judge that said false statements were not admissible as evidence in aggravation; and (2) told the military judge that he had seen the media and the world was watching, to justify her sentence recommendation. Expressly waived. "In this case, trial defense counsel “did not just fail to object,” but “affirmatively declined to object” when answering “no” to the military judge’s question." Had the court taken the issue, they probably would have found the arguments didn't impact the military judge because he is presumed to know the law, especially as TC had just pointed it out, and would follow the law. The AFCCA did address the issue and found that it wasn't improper to argue the world is watching because it wasn't a sufficient threat as seen from cases like, United States v. Norwood, 81 M.J. 12 (C.A.A.F. 2021); United States v. Voorhees, 79 M.J. 5, 14-15 (C.A.A.F. 2019)); United States v. Wood, 18 C.M.A. 291, 40 C.M.R. 3, 9 (C.M.A. 1969)). Perhaps the MJ asking if there were any objections was a nuanced ask? There once was a MJ who would famously respond to an objection with "not on that basis counsel." Clue, there may be an objection but you haven't said the magic words yet. Next. Whether the Air Force Court properly applied United States v. Edwards, 82 M.J. 239 (C.A.A.F. 2022) in finding error—but no prejudice—for a victim impact statement that included videos, personal pictures, stock images of future events, and lyrical music that touched on themes of dying, saying farewell, and becoming an angel in heaven. The members had convicted the Appellant of murder, for which the MJ sentenced him to 18 years confinement. The dead child's mother and grandmother testified in sentencing without objection. The mother also gave an unsworn victim impact statement. The victim impact statement consisted of her orally addressing the military judge while using a PowerPoint slideshow that consisted of pictures, videos, and somber music. The PowerPoint presentation contained eleven slides, including animations which included transitions, appearing and disappearing text, and slides crumpling like paper that is being thrown away. It also included over fifty still images; four still images which were stock images of future life events which ZC would not experience (such as a first day at school, marriage, and graduation); and embedded presentations that automatically played video with accompanying audio. CM then finished her victim impact statement orally. CM stated that “all the slides [she] presented . . . videos, pictures, words . . . all come from [her].” M.W. v.United States affirms the conclusion in EV v. United States that CAAF lacks jurisdiction to hear a petition from an alleged victim who lost at the CCA. Here is the CCA opinion. M.W. at AFCCA consolidates several petitions where the issue was the TC and SVC coordinating over challenges to members. This case lead to an earlier discussion about whether a TC and SVC's interactions can become so intertwined that the SVC becomes a de facto trial counsel subject to all the rules of discovery (and the issue of TC having to disclose the contents of those discussions because if there is no de facto TC, then there is no attorney-client privilege between the TC and SVC. In EV v. United States, 75 M.J. 331, 332 (C.A.A.F. 2016), this Court held that it did not have jurisdiction to review a decision of a Court of Criminal Appeals (CCA) at the request of a “victim of an offense” as that term is used in Article 6b, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 806b (2018). Although Congress has since amended Article 6b, UCMJ, and other provisions of the UCMJ, we are compelled to hold again today that this Court lacks jurisdiction to review a petition filed by a victim of an offense. Our decision rests solely on the statutory language of the UCMJ. It does not reflect any policy decision about whether this Court should have statutory jurisdiction, which is a matter solely for Congress. We further see no reason that Congress could not amend the UCMJ to grant this Court jurisdiction to review a petition filed by the victim of an offense. However, as currently written, neither the language of Article 6b, UCMJ, nor any other statute, grants this Court the necessary jurisdictional authority to review a petition filed by a victim of an offense. We therefore dismiss the petition in this case. United States v. WittIn 2005, a general court-martial consisting of officer members convicted Senior Airman Andrew P. Witt (Appellant), contrary to his pleas, of one charge and two specifications of premeditated murder; and one charge and specification of attempted premeditated murder. The panel sentenced Appellant to death. Witt's appeal bounced up and down resulting in a resentencing hearing, because of IAC during sentencing. Witt is now sentenced to LWOP. The issue in Witt is prosecutorial misconduct during the sentencing argument and prejudice. The granted issue is, During sentencing proceedings the trial counsel urged the panel members to consider how the sentence they imposed would reflect on them personally and professionally, and suggested that the members would be responsible for any harm Appellant committed in the future. Did the trial counsel’s sentencing argument constitute prosecutorial misconduct that warrants relief? We are told that,
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