Court of Appeals for the Armed Forces

United States v. Davis, __ M.J. ___ (C.A.A.F. 2025)

Can a circuit military judge reassign a case from herself to another MJ or between MJs for any reason or no reason? Yes/but--as Chief Judge Ohlson discusses in Davis. JJs Sparks and Johnson are not in complete agreement. 

Davis was before the beak for allegations under Articles 80 and 120.

Davis was arraigned by the circuit military judge CMJ P. The arraignment was shortly after CMJ P. correctly ruled in United States v. Dial and Ferreira that an accused has the constitutional right to a unanimous verdict as to guilt. The Government promptly appealed those rulings, and ACCA stayed the proceedings in each case. 2025 CAAF LEXIS 112, at *3-4. Yes, Anderson says CMJ P. is wrong, but CAAF is not the U.S. Supreme Court. The denial of a writ in Anderson was not a decision on the merits. SCOTUS has made that clear a number of times and CAAF itself follows the same principle for the denial of a petition. Until SCOTUS rules, the unanimous vote issue is  still a live one.

The CMJ reassigned Davis to a different judge, ostensibly to ensure judicial efficiency, as the CMJ did not want to delay Davis's trial if he presided and ruled as he had in Dial.

Judge P. subsequently decided that he would not "rule on any further unanimous verdict motions until the Army Court issued an opinion on the [unanimous guilty verdict] issue." In an affidavit to the ACCA that he filed in the course of the current litigation, Judge P. explained his reasoning:
• "[I]t was likely the defense would continue to file [unanimous guilty verdict] motions in all future cases regardless of the presiding judge."
• The government likely would not provide any additional authorities to support its position on this issue in any future case, and thus Judge P.'s future rulings would likely be the same.
• This state of affairs would result in additional stays of proceedings which "would last around six months" and would "essentially shut down at least half of the courts-martial in Europe and the Middle East [i.e., in the Army's 5th Judicial Circuit] for lengthy periods of time."
• Such delays "would be inconsistent with military justice."

Judge P. also clarified that his decision not to preside over trials with panel members "was not [an] attempt[] to arrange a particular result (i.e., a denial of the unanimous verdict motion), because [he] could not be certain how other military judges would rule." Further, he did not tell any other military judge how to rule "either expressly or impliedly." He decided to "only detail [himself] to or remain detailed on bench trials and to move other cases toward trial." His actions in this latter capacity would be confined to "handl[ing] arraignments and any motions for which the parties needed rulings significantly before trial in order to properly prepare (e.g., compel experts, compel discovery, compel witnesses, etc.) and to defer other motions, including unanimous verdict motions, to the trial judge for resolution."

2025 CAAF LEXIS 112, at *4-5. "As [will] be seen then, this case was anything but routine." 2025 CAAF LEXIS 112, at *2.

United States v. Campos

The granted issue requires us to decide whether the “military judge abuse[d] his discretion by admitting and considering, over defense objection, allegations of additional misconduct in the unsworn victim impact statement.” We hold that the military judge abused his discretion, but we determine that the error was not prejudicial. We therefore affirm the decision of the United States Navy-Marine Corps Court of Criminal Appeals (NMCCA), which affirmed the findings and sentence in this case.

NMCCA reminds us of what a VIS is all about.

Rule for Courts-Martial 1001(c) (2019 ed.) governs the victim’s unsworn statement.

• Three clauses of this rule are pertinent.
  • R.C.M. 1001(c)(5)(A) provides: “The crime victim may make an unsworn statement and may not be cross-examined by trial counsel or defense counsel, or examined upon it by the court-martial.”
    
  • R.C.M. 1001(c)(3) provides: “The content of statements made under paragraph[] . . . (5) may only include victim impact and matters in mitigation.”
    
  • R.C.M. 1001(c)(2)(B) states: “victim impact includes any financial, social, psychological, or medical impact on the crime victim directly relating to or arising from the offense of which the accused has been found guilty.”

The erroneous statements included, "[Accusations] of Appellant of yelling at her, grabbing and pulling her arms, immobilizing her against a wall, taking her phone away, and cutting off her internet service. Appellant, however, was not charged with any offense in connection with these alleged acts.

In answer to a defense objection at trial and on appeal, the prosecution argued that,

First, the Government contends that a victim may provide context for understanding the impact of the accused’s offenses and that the description about Appellant’s uncharged misconduct properly provided such context in this case.

Second, the Government argues that the description of the uncharged misconduct in the victim impact statement was proper under this Court’s decision in United States v. Mullens, 29 M.J. 398 (C.M.A. 1990). In Mullens, the accused pleaded guilty to two specifications of sodomy with his minor son and one specification each of indecent acts with his minor son and with his minor daughter. As part of his plea agreement, the accused made a stipulation of fact in which he admitted to committing additional instances of sodomy and indecent acts that were not charged. The government presented this stipulation of fact to the members during presentencing. This Court held that no error occurred because the uncharged misconduct was proper evidence in aggravation under R.C.M. 1001(b)(4) (1984 ed.).

CAAF declines to extend Mullens to VISs.

[W]e decline to extend the holding of Mullens with respect t evidence in aggravation under R.C.M. 1001(b)(4) (1984 ed.) to apply to victim impact statements under R.C.M. 1001(c) (2019 ed.). Evidence in aggravation is different from a victim’s statement under R.C.M. 1001(c) in significant ways. Aggravation evidence is subject to the Military Rules of Evidence (M.R.E.), which means that a witness who provides such evidence must testify under oath and be subjected to cross-examination. In addition, the military judge must test the evidence for unfair prejudice under M.R.E. 403. United States v. Nourse, 55 M.J. 229, 232 (C.A.A.F. 2001) (following Mullens where the military judge expressly assessed the evidence under M.R.E. 403). In addition, the term “victim impact” now has a specific definition in R.C.M. 1001(c)(2)(B), which did not exist at the time Mullens was decided. 

In footnote 5, the court observes that the decision is limited to VIS unsworns, and that a “victim may also testify as a witness during presentencing proceedings in order to present evidence admissible under a rule other than R.C.M. 1001(c)(3).” We do not address the permissible content of such testimony in this opinion."