Update. A commenter has provided the following for consideration.
In Richards, Judge Hardy, writing for the Court, does two main things: reiterate the need for the government to prove every single element of an offense, and provide a framework which practitioners can use to determine if something is prejudicial to good order and discipline. United States v. Richard, __M.J.__, No. 22-0091/AF, 2002 CAAF LEXIS __ (C.A.A.F. Sept. 7, 2022).
Some years ago, Air Force Colonel Jeremy Weber turned a masters thesis into a law review article about good order and discipline.
Jeremy S. Weber, Whatever Happened to Military Good Order and Discipline. 66 CLEVE. ST. L. REV. 123 (2017).
If Washington and de Saxe are correct that discipline forms the soul of a military, then the United States military seems to be experiencing a spiritual crisis. Increasingly, the public perceives the military term of art “good order and discipline” not as representing a core principle of military effectiveness, but as rhetorical “chaff” military leaders use to voice their opposition to proposed reforms without actually communicating anything. In recent years, military leaders have employed the term to voice their opposition to a number of proposed personnel, social, and legal military reforms, and they have done so without clearly explaining what good order and discipline is or why it requires a certain position on these policies. In most cases, the military ultimately enacted those reforms without any measurable negative effect on good order and discipline. As a result, the linguistic impact of the term has come under fire from Congressional leaders and the media. This battle over the meaning and weight of the good order and discipline rationale has played out most recently in calls for military justice reform.
His statistical research shows that the term is often stated or used but that it defies definition. He explores the root of the term going back to the Seventeenth and Eighteenth centuries. As one of his purposes for examining the current state of UCMJ art. 134 prosecutions he says that,
This Article then ties the developments regarding Article 134 to a larger issue: the military’s difficulty in defining what good order and discipline means. To address this situation, this Article proffers a comprehensive definition of the term that military leaders can use to specifically ground their positions and proffers that the military justice system can better specify what conduct is and is not prohibited under Article 134.
In developing that theme he reviews military and Supreme Court decisions challenging prosecutions under Article 134 and concludes,
However, persisting issues continue to raise the question of whether the contours of the “good order and discipline” term are really understood, or, as the dissent [in Parker v. Levy] held (sic), whether the military has changed to the extent that good order and discipline now represents a nebulous concept.
He gets us to one "limitation" in the Manual for Courts-Martial under Article 134(1) that the conduct have a "reasonable and palpable effect" on good order and discipline--a limitation perhaps ignored in trials. He recognizes this still does not define what actions can be prejudicial in many cases rather it's an attempt to give weight to the severity of the conduct. The article is a good read, especially as Judge Maggs has given it a bit of currency--he cites Weber's article in his (and Judge Stucky's) concurring opinion in United States v. Richard, __ M.J. ___, No. 22-0091/AF, 2022 CAAF LEXIS __ (C.A.A.F. Sept. 7, 2022).
Is there a volunteer to do a case review for us (anonymous even)? We don't want to write more ourselves because we are in the middle of a brief on this very issue.
Submit a draft to firstname.lastname@example.org.
In Sigrah, the court explains R.C.M. 914 and the "Jencks Act.
We reiterate today that the Kohlbek framework is the appropriate prejudice analysis for preserved nonconstitutional R.C.M. 914 error.
R.C.M. 914 requires the government to make available to the defense, after a witness has testified, any statement possessed by the United States that the witness has made. In its opinion, the lower court agreed that the military judge erred in her application of R.C.M. 914. However, the lower court determined that the error did not substantially influence the findings.
CAAF declines to apply the "common authority" doctrine in favor of the Government in Black.
The military judge granted Appellant’s motion, and the Government filed an interlocutory appeal with the United States Army Court of Criminal Appeals (ACCA) which reversed. Appellant appealed the ACCA’s decision to this Court, and we reverse again. The military judge did not abuse his discretion in holding: (1) PFC Avery lacked common authority to consent to the search of Appellant’s phone; (2) the Government failed to prove that the evidence was subject to the inevitable discovery doctrine; and (3) Appellant’s later voluntary consent to search the phone was not sufficiently attenuated from the unlawful search to cure that error.
Black appealed ACCA's reversal of the trial court’s decision to suppress photographic evidence of child pornography found on appellant’s cell phone. In suppressing the evidence, the trial judge reasoned that PFC A. – who discovered the photos – did not have common authority to consent to a search of PFC Black’s phone. ACCA disagreed.
Black appealed and CAAF granted review to answer the following question:
“Whether the Army Court erred in its abuse of discretion analysis by (1) creating a novel test for common authority, (2) failing to give deference to the military judge’s findings, (3) comparing a modern cell phone to a traditional “container,” and (4) finding error based on a difference of opinion.”
In deciding the issue of common authority, CAAF concluded that the Military Judge did not abuse his discretion in deciding that PFC A. did not have common authority over the phone when he consented to a search. The CAAF reasoned:
Because we are aware of no binding precedent that equates physical access with common authority or that requires express or actual restrictions on use, we disagree that the military judge misapplied the law.
In addition, there are two new grants.
No. 22-0211/AF. U.S. v. Liam C. Lattin. CCA 39859.
I. WHETHER THE LOWER COURT ERRED WHEN IT DID NOT APPLY THE EXCLUSIONARY RULE.
II. WHETHER THE LOWER COURT ERRED WHEN IT FAILED TO ADDRESS A SEARCH AUTHORIZATION'S STATED EXPIRATION DATE.
No. 22-0230/AR. U.S. v. Tristen D. Willey. CCA 20210631.
I. WHETHER TRIAL DEFENSE COUNSEL'S WITHDRAWAL OF A MOTION FOR APPROPRIATE RELIEF ON THE GROUNDS OF MULTIPLICITY AND UNREASONABLE MULTIPLICATION OF CHARGES WAIVED APPELLATE REVIEW OF THE MILITARY JUDGE'S ALLEGED ERROR OF ACCEPTING APPELLANT'S GUILTY PLEAS TO FACIALLY DUPLICATIVE OFFENSES.
II. WHETHER ANY OF THE OFFENSES IN THIS CASE WERE FACIALLY DUPLICATIVE, AND IF SO, WHETHER THE MILITARY JUDGE ERRED IN ACCEPTING APPELLANT'S GUILTY PLEAS TO THOSE OFFENSES.
Jake is a 2L at Villanova Law who is externing with NIMJ.
In Bench, (the 21st published opinion this term) the issue was
[W]hether Appellant’s right to be confronted by a complaining witness was violated when trial counsel misled Appellant’s son by telling him that Appellant was not watching his son’s remote live testimony. Because Appellant failed to preserve this issue at trial, the Court must decide whether any error was plain or obvious. We hold that it was not.
[corrected] The court first discussed but did not find waiver of the issue. The court proceeded to a plain error analysis.
The Government more reasonably argues that Appellant waived this issue by operation of law under the plain language of Rule for Courts-Martial (R.C.M.) 905(e) (2016 ed.). That rule provides that such claims “must be raised before the court-martial adjourned for that case and, unless otherwise provided in [the Manual for Courts-Martial, United States], failure to do so shall constitute waiver.” R.C.M. 905(e). We acknowledge that the language of the rule would appear to be dispositive on this point in the Government’s favor, but as this Court has recognized in the past, there has long been disagreement in our own precedent about whether the word “waive[d]” in R.C.M. 905(e) actually means “waived” (as defined by the Supreme Court in Olano, 507 U.S. at 733), or instead means “forfeited” (the failure to preserve an issue by timely objection). See Hardy, 77 M.J. at 441–42 (noting the disagreement in this Court’s precedents); id. at 445 (Ohlson, J., dissenting) (same). Two of our more recent precedents lead us to conclude that regardless how one interprets the word “waive[d]” in R.C.M. 905(e), that rule does not extinguish a claim when there has been plain error.
Update Monday, August 8, 2022 Appeal - Summary Disposition
No. 22-0023/AR. U.S. v. Michael L. McClure. CCA 20190623. On further consideration of the granted issue, 82 M.J. 194 (C.A.A.F. 2022), and in light of United States v. Mellette, __ M.J. __ (C.A.A.F. July 27, 2022), we conclude that even assuming some error by the military judge, Appellant was not prejudiced. Accordingly, it is ordered that the judgment of the United States Army Court of Criminal Appeals is affirmed.
Following the Supreme Court’s proviso in Trammel v. United States Trammel, 445 U.S. 40, 50 (1980) that evidentiary privileges are to be strictly construed, the CAAF holds in a 3-2 opinion in Mellette that the M.R.E. 513(a) psychotherapist-patient privilege does not extend to behavioral health diagnoses and treatments contained within medical records or some other form not consisting of communication between a patient and a psychotherapist or psychotherapist’s assistant.
CAAF’s ruling resolves a circuit split between the land and sea forces in favor of the Army appellate court’s minimalist approach. In 2006 the Coast Guard Court of Criminal Appeals took an expansive view of the M.R.E. 513 privilege. See H.V. v. Kitchen, 75 M.J. 717 (CGCCA 2016). In 2019, in an unpublished opinion the Army Court of Criminal Appeals followed the dissent in Kitchen by finding that mental health diagnoses and treatments are independent of confidential communications and significantly are often meant to be disclosed to a third party, such as a pharmacist or a physician prescribing a medication for a physical ailment (United States v. Rodriguez, 2019 CCA LEXIS 387). (Disclosure: this writer was Rodriguez’s appellate counsel.) In 2021 the Navy Court of Criminal Appeals followed the Coast Guard’s more expansive view of the M.R.E. 513 privilege in in its ruling in United States v. Mellette (81 M.J. 681). The CAAF granted certoriari, specifying three issues relating to the M.R.E. 513 privilege and here we are. (Notably, the Air Force Court of Criminal Appeals had not weighed in on the issue but anecdotally, Air Force counsel and trial judges have followed the expansive interpretation of the privilege until now.)
In Mellette, the CAAF granted review of three issues: a. Are diagnoses and treatment records subject to the M.R.E. 513 privilege? b. Should the NMCCA have reviewed the mental health records before ruling? c. Was there a waiver of the M.R.E. 513 privilege in the case? Deciding the first issue in favor of the petitioner, the second and third issues are not reached. CAAF’s holding centers on both Trammel’s prescription that evidentiary privileges “must be strictly construed.” Examining the specific language of M.R.E. 513(a), the court finds that the limiting language of “communication” and “between the patient and a psychotherapist” are meaningful choices. The court notes that in contrast the analogous Florida state statute explicitly protects both communications and records, unlike M.R.E. 513. Turning to a government argument that the M.R.E. 513 privilege is akin to the attorney/client privilege in M.R.E. 502, the court dismisses this argument by noting that first, the protection for attorney work product is a separate rule (R.C.M. 701(f)) without an equivalent rule for psychotherapist work product; and second, that the attorney-client privilege is in fact narrow and does not include the underlying facts that may be communicated with an attorney (citing to Upjohn Co, 449 U.S. 383, 395 (1981) and In re Six Grand Jury Witnesses, 979 F.2d 939, 945 (2d Cir. 1992)).
In the dissent, Judge Maggs (joined by Judge Sparks) argues that diagnoses and treatment are privileged under M.R.E. 513(a) “only to the extent that they reveal confidential communications between the patient and psychotherapist that were made for the purpose of diagnosing or treating the patient’s mental condition.” Had this been the majority opinion, the practical effect may well have been to force in camera review of medical records, deny the disclosure of specific diagnoses and allow the production of medication records (as few medications are prescribed for one and only one behavioral health condition).
Of note to trial practitioners, the CAAF finds with respect to the specific mental health records at issue in Mellette that the sought records “to include the dates visited said mental health provider, the treatment provided and recommended, and her diagnosis….were not protected from disclosure by M.R.E. 513(a)” and that these records should have been produced and potentially admitted. As well, the court also reiterates that diagnoses and evidence that relate to a witness’ credibility and reliability are material to the defense. One would expect that going forward defense discovery requests for AHLTA and similar records will request the same specific three categories requested in Mellette.
Although on its face CAAF’s decision in Mellette may appear to buck against the trend of expanding victims’ rights, it actually follows the contemporary judicial path of construing privileges narrowly in order to preserve the truth-seeking purview of the tribunal. The decision falls in line with Harpole (77 M.J. 231)(narrowing the victim-advocate privilege), Jasper (72 M.J. 276)(narrowing the clergy-parishioner privilege), and Durbin (68 M.J. 271)(narrowing the spousal privilege).
Nathan Freeburg, a guest post.
Readers are invited to offer guest posts by emailing us at admin@nimj. org.
There is a lot to unpack in Nelson.
The decision of the United States Navy-Marine Corps Court of Criminal Appeals (NMCCA) is hereby affirmed.
This is one of the several "Bahrain Cases" where the Appellant was accused of soliciting prostitutes, "sex trafficking," and 133 (for failing to report others and a false official). Should his statements to NCIS have been suppressed?
At trial, the MJ denied a suppression motion except for statements made about the UCMJ art. 133 allegation. With that, there being no other evidence, that charge was dismissed. The Appellant had agreed he was properly notified by NCIS of their suspicions he engaged with prostitutes, but he argued he was not properly put on notice that they suspected him of sex trafficking. The NMCCA set aside the 133 false official and affirmed.
Any volunteers to write on this case? I didn't represent Nelson but I'm going to recuse myself for other reasons. Send a draft to email@example.com, please.
Updated with some comments from anonymous but known to us writers.
In Palacios-Cueto, the CAAF finds no IAC during the sentencing case and the erroneous arguments of trial counsel were harmless.
Appellant faults his civilian defense counsel and trial defense counsel (hereinafter referred to collectively as defense counsel [, see, e.g., United States v. Boone, 42 M.J. 308 (C.A.A.F. 1995). And see United States v. Golston, 53 M.J. 61, 67 (C.A.A.F. 2000) (Gierke, J., concurring) (this team approach is equally applicable to the prosecution.)] for several deficiencies: failing to admit evidence of a potentially mitigating matter during sentencing; not advising him to address this and two other potentially mitigating matters in his unsworn statement; and not requesting tailored instructions regarding these matters.
In the AFCCA opinion, decided 2-1, we find the IAC allegations were broader than those taken up by CAAF: issues with a suppression motion, instructions, defense argument on findings, and discovery. The AFCCA majority determined there was no prejudicial IAC. Judge Meginley, dissenting, would have found "counsel [were] ineffective in failing to present an effective sentencing case." As to the trial counsel's erroneous arguments, Judge Meginley "believe[s] those arguments materially prejudiced Appellant, as there is a reasonable probability that the outcome of the proceeding would have been different had trial counsel not committed error." He ended,
In his closing argument, trial counsel admonished the members, “You will have the ultimate decision on . . . whether justice will be served, or whether the accused will be acquitted,” as if to say an acquittal would not be justice. Civilian defense counsel responded these are “words that should never come out of a prosecutor’s mouth;” I agree. The majority commented that “‘Justice’ must be tethered to the evidence and the burden of proof lest it be confused with justice for the victim or society or the military justice system.” Unfortunately for Appellant, looking at his case as a whole, I question whether “justice” has been served. I respectfully dissent.
[S]ix [of eight] references to justice are not so easily dismissed. If we were to review these other statements in isolation, each of them would raise significant concerns. The members might have understood the twice-repeated statement during voir dire—“I’m here . . . in the pursuit of justice in this case”—to imply that Appellant’s defense counsel were not there to pursue justice. The members might have understood trial counsel’s request in his opening statement—“repair the little that can be repaired and bring justice to [A1C M.T.] by finding the accused guilty”—to mean that members should focus on providing relief to A1C M.T. rather than assessing the evidence. The members similarly might have understood trial counsel’s first remark during his findings argument—“you will have the ultimate decision . . . whether justice will be served, or whether the accused will be acquitted”—to mean that they should focus on justice rather than on the evidence. And both this remark and the other statement during findings ignore the Government’s burden of proving guilt. Finally, the second mention of justice during sentencing argument—“[A] sufficient punishment . . . will bring some form of closure to [A1C M.T.] for all that she has . . . endured in this year-and-a-half nightmare”—may have misguided the members.
The CAAF, essentially agreeing with the Government's arguments, finds there is no prejudicial error.
The Government, however, makes three responses. First, the Government argues that this Court should not view trial counsel’s statements in isolation, but instead under Donnelly, 416 U.S. at 637, must view them in context. Second, the Government argues that, in viewing the six problematic statements, we should not ascribe to them the “most damaging meaning . . . from the plethora of less damaging interpretations.” Id. at 647. Third, the Government argues that even if some statements were improper, the AFCCA was still correct in concluding that any error was harmless under the Fletcher factors.
But "not as severe as the misconduct that this Court unfortunately has seen in other cases. See, e.g., United States v. Norwood, 81 M.J. 12, 21 (C.A.A.F. 2021); United States v. Voorhees, 79 M.J. 5, 9 (C.A.A.F. 2019); United States v. Sewell, 76 M.J. 14, 17–19 (C.A.A.F. 2017); United States v. Frey, 73 M.J. 245, 249 (C.A.A.F. 2014); see also Berger v. United States, 295 U.S. 78, 84 (1935)."
Yes, I'm with Judge Meginley on this one as to the arguments. I have in mind several points on this, which we've discussed before.
The CAAF in this case holds that,
"[W]hen a military judge declares a mistrial, the government may appeal that ruling to a service court of criminal appeals under Article 62(a)(1)(A), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 862(a)(1)(A) (2018).
Appellant argued three reasons why a mistrial ruling was not appealable under Article 62.
No. 22-0123/AF. U.S. v. Travis D. Pullings. CCA 39948. 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 issues:
I. IN ADDITION TO PRISON OFFICIALS, CAN THE DECISIONS OF MILITARY PERSONNEL SATISFY THE "DELIBERATE INDIFFERENCE" ASPECT OF THE CRUEL AND UNUSUAL PUNISHMENT TEST WHEN THEY REPEATEDLY SEND MILITARY INMATES TO A LOCAL CIVILIAN CONFINEMENT CENTER WITH A HISTORY OF INHUMANE LIVING CONDITIONS FOR INMATES?
II. ADDITIONALLY OR ALTERNATIVELY, DID APPELLANT SUFFER CRUEL AND UNUSUAL PUNISHMENT FOR 247 DAYS AND NIGHTS AT LOWNDES COUNTY JAIL?
Pullings at AFCCA here.
Another case in a history of issues with civilian pretrial and posttrial confinement. Most, but not all, seem to arise in AF cases. Kawai is a recently decided one.
A very broad search in Lexis with the search terms "civilian" and "conditions" and ""confinement conditions"" brought up a list of 237 cases. Looking at only the first 50, 42 were AF cases going back to September 2019. Of these, 11 were about military confinement. The local facilities include Otero County, NM (note, the Army uses this facility), whichever civilian jail services Vandenberg AFB, CA, Sutter County Jail, CA, Lowndes County Jail, GA, Hillsborough County Jail, FL, "Bossier Max," SC, Taylor County Jail, TX, the local facility that services McConnell AFB, KS, the local facility that services Tinker AFB, OK, Tom Green County Jail, TX, the facility that services Dover AB, DE, Comal County Jail, TX, Elmore County Jail, ID,
Appellant was ordered into pretrial confinement, which included both a civilian confinement facility and a military confinement facility. While in the civilian facility, Appellant wore the standard striped jail uniform. When Appellant returned to Ellsworth AFB for appointments other than those with defense counsel, she wore the striped jail uniform. Appellant's diet during pretrial confinement caused weight gain while in the civilian facility and subsequent weight loss while in the military facility.
United States v. Hepfl, No. ACM 39829 (f rev), 2021 CCA LEXIS 491, at *3-4 (A.F. Ct. Crim. App. Sep. 24, 2021). A UCMJ art. 13 motion was waived as part of her PTA. (Was ADC aware the client was being brought to on-base appointments in prison clothes?)
In United States v. Damm, the appellant argued his confinement conditions violated Article 58, UCMJ, "because he was treated differently from civilian confinees at [the confinement facility]." The court held "[a]s with alleged violations of the Eighth Amendment and Article 55, prisoners must first exhaust administrative remedies before invoking judicial intervention to remedy alleged violations of Article 58(a)." Because the court determined appellant "failed to exhaust his administrative remedies," the court did not consider his Article 58, UCMJ claims. . . . Here, appellant does not argue he exhausted his administrative remedies, but instead speculates such exhaustion "would have been futile in this case."
Query: What steps are taken by the military or civilian facility to ensure the detainee is aware of their complaint processes?
United States v. Grillo, No. ARMY 20210309, 2022 CCA LEXIS 295, at *4-5 (A. Ct. Crim. App. May 18, 2022).
The message here is to trial defense counsel, I think. The burden is on you to do the following post-trial.
1. Advise and encourage using the facility complaint system and also the military system at the same time.
2. Raise the issue with the SJA.
3. Put the issue in the 1106.
4. Reread United States v. Willman, 81 M.J. 355 (C.A.A.F. 2021) for the consequences of first raising the issue on appeal.
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