Navy-Marine Corps Court of Military Appeals

An argument too far

United States v. McNichol is worth a read for two reasons. First,

Civilian defense counsel, implied that HN Sierra’s testimony was influenced through trial preparation. He asked nine questions implying trial preparation had affected her testimony. Appellant attempts to distinguish Norwood, asserting that the cross-examination focused on testimony being consistent with a narrative created the morning after the assault. The C.A.A.F. rejected a similar temporal argument in Norwood. Appellant opened the door to these prior consistent statements through this line of questioning.
. . . 
Our superior Court has held that when defense counsel implies improper influence on the victim through trial preparation, the Government may offer consistent statements made before trial preparation. In United States v. Norwood, the Court of Appeals for the Armed Forces [C.A.A.F.] found a victim’s videotaped forensic interview admissible under Mil. R. Evid. 801(d)(1)(B)(i). The C.A.A.F. found that the prior statements were admissible because of the implication that the victim had been coached.

and second, the VLC sent a letter post-trial which repeated almost verbatim the victims in court statements for sentencing.  The following was added.

​My client was violated not only on 2 November 2019, but at each and every turn during the trial as the defense objected to her testimony, cross-examined her, allowed the Accused to perjure himself, and attempted to strip her of her opportunity to provide a full victim impact statement.

The defense asked the convening authority to ignore these comments. NMCCA found no prejudicial error and affirmed the findings and sentence. However, NMCCA did say that

While Congress and the President have afforded greater leeway for crime victims’ submissions post-trial, and that due process is satisfied by permitting an accused notice and a response, we cannot countenance attacks on constitutional rights by trained legal counsel. A victim cannot include in an unsworn statement that which a trial counsel could not argue. A VLC likewise, cannot not make arguments that a trial counsel could not.
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This ill-conceived attack—on the exercise of constitutional and regulatory rights (under the supervision of a military judge), and an unsubstantiated ethical accusation—was two sentences in an otherwise admissible three-page submission. The brief argument resulted in no substantial prejudice, considering that the only relief requested was a favorable recommendation to the clemency and parole board.

Colleagues have told me to restrain myself. So I will merely ask a question--what kind of lawyer is the Navy hiring to be a VLC?

Timing might be important

In United States v. Millican, the MJ accepted Appellant's guilty plea to a 128b. The problem you ask?

​On 13 August 2018, Congress passed the National Defense Authorization Act for Fiscal Year 2019 [NDAA 2019]. Section 532 of NDAA 2019 included a new punitive article, Article 128b, which covered certain domestic violence offenses. NDAA 2019 provided that this new provision would take effect on 1 January 2019. However, the offense underlying Specification 1 of Charge 3, Appellant’s assault upon Mrs. Mike, occurred on or about 1 August 2018. The Ex Post Facto Clause found in Article I, Section 9, of the Constitution, has long been interpreted to prohibit laws that: (1) criminalizes acts that were not criminal at the time they were committed; (2) aggravates a crime or makes it greater than it was at the time it was committed; (3) imposes additional punishment for a crime that would have not been so punished at the time committed; or, (4) changes the rules of evidence that require less or different evidence to convict than would have been required at the time the act was committed.

Having found error (which the Government agreed existed) the court looked to Schmuck and determined they could affirm an LIO of 128, assault and battery. But, but based on the facts there is no sentencing relief warranted.

Pity the timing wasn't noticed at preferral, the 32, or referral.