Courts of Criminal Appeals

Air Force

Army

In United States v. Wordlaw, an enlisted panel convicted appellant, contrary to his pleas, of two specifications of sexual assault and one specification of assault consummated by a battery and was sentenced to 10 years and a DD. The court found the Appellant's claim of IAC meritorious and set aside the findings and sentence. The deficiencies bear reading as a trial practice teaching moment. The final section of the opinion speaks to military judges.

Though we provide relief based on appellant's claim of ineffective assistance of counsel, we note one other issue—now moot—that warrants brief discussion: the military judges' gatekeeping responsibilities in sexual offense cases when confronted with evidence covered by Mil. R. Evid. 412.

Judge Penland concurred, and penned some additional thoughts.

I fully concur with Judge Schlack's detailed approach, analysis, and decision. I write separately to mention two additional episodes of deficient trial advocacy. My intent is not to "pile on," but to succinctly encourage counsel not to repeat them.

First, the defense counsel's opening statement began with a quote from a centuries-old play. It does not bear repeating, and I am confident that I am not alone in recognizing its misogyny. The quote was inappropriate and -- it follows —categorically unhelpful.

Second, the defense counsel's closing argument featured, for the first time in this trial, a demonstration by the appellant along with dialogue with counsel. The government predictably objected, and the judge predictably sustained the objection with a curative instruction. The law authorizes a military accused to bring information to the factfinder's attention in multiple ways, but this method was clearly not among them. To make matters worse, it raised the not unreasonable prospect -- for the factfinder's consideration -- that the defense did not know how to try the case.

The Army in particular, and the other Services have publically lauded their efforts to put the "best and brightest" in OSTC billets.

www.army.mil/article/272713/army_stands_up_special_trial_counsel_with_independent_authority_for_13_ucmj_offenses

MILITARY JUSTICE Actions Needed to Help Ensure Success of Judge Advocate Career Reforms. Report to the Committee on Armed Services, House of Representatives, U.S. GAO, May 2024.

"Senior officials from each service also raised concerns about the newly established Office of Special Trial Counsel (OSTC) and the likelihood that it will exacerbate issues of inexperience within certain litigation positions. Generally, judge advocates are expected to become eligible for assignment to the OSTC after 2 to 4 years of litigation experience. OSTC experience standards, coupled with the limited number of litigators who meet these requirements, will likely force the services to rely on inexperienced litigators to serve as defense counsel or other positions that lack similar requirements. Further, these officials stated that the focus on OSTC experience standards could lead to a potentially significant imbalance in the experience levels of defense and prosecution assigned to litigate the same case."

In United States v. Ford, the court discusses multiplicity in DV cases and a lack of providence to two specifications.

Based on the same principles set out in Malone, we find Specifications 2 and 4 of Charge II are multiplicious. Both assaults occurred within a short time, were instigated by the same argument, and were not interrupted by a break in time. "While the specifications may not be verbatim," i.e., identical, it is clear from the providence inquiry and the stipulation of fact that each specification "arose from an uninterrupted attack orchestrated by appellant." Though not alleged by appellant, it was plain error for the military judge to accept appellant's plea to both specifications. The error "materially prejudiced appellant's constitutional rights against Double Jeopardy," and as such was not harmless beyond a reasonable doubt.

United States v. Malone, __ M.J. ___ (Army Ct. Crim. App. 2025) is the case cited to in Ford. and is also about various instances of DV charged in separate specifications. Like Ford, there is a discussion of whether multiplicity was waived.

Navy-Marine Corps

In United States v. Peters, NMCCA distinguishes and explains Patterson.

Restated, the question is what effect does a CO or XO's actions or NCIS reference to either senior leader have on the voluntariness of a confession.

​Recently in United States v. Patterson, [No. 202200262, 2024 CCA LEXIS 130, *16–17 (N-M. Ct. Crim. App. April 4, 2024) (unpublished)].  this Court found that the appellant, First Lieutenant (1stLt) Patterson, provided an involuntary statement to NCIS. Our analysis turned on three factors. First, 1stLt Patterson’s executive officer instructed him not to “squirrel around [and] just answer [NCIS’s] questions” immediately before 1stLt Patterson was escorted by a separate superior officer to the NCIS offices. The second factor was that the special agent provided an inadequate rights advisement. The final factor was that during the interview, the special agent repeatedly referenced reporting to 1stLt Patterson’s command. This final factor was only relevant insofar as it “underscored and amplified the coercive effect of [the executive officer’s] directive to answer their questions.”

Another test post.

United States v. Dillenburger, with a post-Smith v. Arizona issue.

1. Standards of Review and Legal PrinciplesThe court distinguishes between waiver and forfeiture in legal arguments.

• Waiver occurs when a party intentionally gives up a known right, meaning the issue cannot be reviewed on appeal.
  
• Forfeiture is the failure to assert a right in a timely manner, which allows appellate review under the plain error standard.
  
• Plain error must be (1) clear or obvious and (2) result in material prejudice to a substantial right.
  

The Confrontation Clause of the Sixth Amendment guarantees a defendant’s right to cross-examine witnesses. If a plain error affects this right, the burden shifts to the Government to prove that the error was harmless beyond a reasonable doubt. However, not all evidence used in urinalysis cases is testimonial, meaning that certain records (e.g., chain of custody logs) do not trigger Confrontation Clause concerns.
Lastly, if the law changes between trial and appeal, the appellant benefits from the new legal standard.
2. The Impact of Smith v. Arizona (2024)The Supreme Court's Smith v. Arizona decision established that:

• A forensic analyst’s out-of-court testimonial statements cannot be admitted unless the analyst is unavailable and the defendant had a prior chance to cross-examine them.
  
• A substitute expert cannot introduce or rely on testimonial statements made by another analyst.
  
• If an expert presents another analyst’s findings as part of their opinion, those findings enter evidence for their truth, thus requiring cross-examination of the original analyst.
  

This ruling is in line with existing Military Rule of Evidence 804(b)(1) regarding unavailable witnesses.
3. Analysis: No Confrontation Clause Violation

• At trial, Ms. Flowers authenticated and testified about urinalysis reports showing positive cocaine results. The defense did not object when these reports were admitted as business records.
  
• Defense later argued that her testimony violated the Confrontation Clause under Smith v. Arizona because she allegedly relied on testimonial hearsay.
  
• However, the issue was waived regarding the admission of the lab reports since no Crawford v. Washington objection was raised at trial.
  
• The issue regarding Ms. Flowers’ testimony was forfeited (not waived), meaning it could still be reviewed under the plain error standard.
  

Key Distinction from Smith v. Arizona

• In Smith, the expert directly relied on and repeated another analyst’s findings.
  
• Here, Ms. Flowers reviewed raw testing data (e.g., machine-generated graphs) rather than another analyst’s testimonial report.
  
• The defense failed to show that Ms. Flowers referenced testimonial hearsay.
  
• The court found no clear error, and even if there was an error, it was harmless beyond a reasonable doubt.
  

Conclusion

• The Defense waived any argument against the drug reports themselves.
  
• The Defense forfeited its argument regarding Ms. Flowers’ testimony, requiring a plain error review.
  
• Ms. Flowers did not introduce testimonial hearsay in a way that violated Smith v. Arizona.
  
• Even if an error occurred, the Government proved it was harmless beyond a reasonable doubt due to the strength of the prosecution’s case.
  

Thus, there is no Confrontation Clause violation in this case.