Navy-Marine Corps Court of Criminal Appeals

United States v. Waada

Like DNA in epithelial cells, post-trial paperwork errors persist. In a published opinion, NMCCA addresses the question of the EoJ.

​Although Appellant submitted his case on the merits without assignment of error, we note that the Entry of Judgment [EOJ] in this case does not comply with Rule for Courts-Martial [R.C.M.] 1111(b)(1)(A) because it does not adequately summarize each specification of the charge. Although we find no prejudicial error, we take this opportunity to define what is required in an EOJ to provide guidance to the trial judiciary on an issue that all too frequently requires correction on appeal. We therefore take action in our decretal paragraph. In accordance with R.C.M. 1111(c)(2), we modify the EOJ and direct that it be included in the record.

United States v. Shelby

Investigations can take a long time, often months, sometimes years. Then there's the UCI and the PCS season.

9 Feb. 2022 -- referral of sex offenses charges to GCM.

3 feb. 2023 -- MJ dismisses some charges because of UCI.

April 2023 -- back to court. Although now there's a potential issue with the defense counsel from the first go at prosecution because it appears to be PCS time for the counsel--off to the USNA as an instructor. As part of the MJ's ruling on an IMC request, the MJ dismisses a specification.

April 2024 -- in a published opinion, NMCCA says the MJ made some mistakes.

The convening authority correctly regarded the request as not clearly claiming an attorney-client relationship. By imposing on the convening authority a duty to look beyond Appellee’s express representation of no attorneyclient relationship, the military judge applied an incorrect legal principle and absolved Appellee from his burden to clearly claim the existence of such a relationship. As such, the military judge abused his discretion by applying an incorrect view of the law. Nonetheless, we reach the same conclusion as the military judge that the convening authority improperly denied the IMC request, but we do so for a different reason.

NMCCA helpfully discusses the difference between appellate standards of review and the different standards applicable at trial. In the process, the court resurrects a charge that the MJ had dismissed for "cumulative error" reasons.

The cumulative error doctrine was not born in military courts, but has been used by military appellate courts for more than seven decades as an expansion of the mandate in Article 59(a), UCMJ, that authorizes military appellate courts to set aside a finding only if an error “materially prejudices the substantial rights of an accused.” The cumulative error doctrine is a test for prejudice that looks retrospectively at a trial’s execution and results to assess the “cumulative effect of all plain errors and preserved errors.” Under the doctrine, criminal courts of appeal determine if “‘a number of errors, no one perhaps sufficient to merit reversal, in combination necessitate the disapproval of a finding.’” We then reverse only if we find that the cumulative effect of the errors denied an appellant a fair trial.

We are aware of no statute, rule, or case that permits the use of the cumulative error doctrine in the pretrial context. To the contrary, one can hardly assess the cumulative effect of errors on the fairness of a trial if the trial has not yet commenced and a verdict has not yet been announced.

Judge Gross concurs in the result, but does not believe the IMC issue was properly before the court. He ends with a time-worn admonition.

Despite the fact that we vacate the military judge’s ruling, nothing in this opinion should be read as condoning the Government’s behavior in how it has sought to prosecute Appellee up to this point. The military judge’s ruling sets forth a series of concerning actions and decisions by the Government both in the current court-martial and the prior proceedings that could be construed to demonstrate a “win at all costs” mentality. Trial counsel would be wise going forward to remind themselves of the Supreme Court’s famous exhortation[.]

See also n. 80.