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CAAFlog

Navy-Marine Corps Court of Military Appeals

1/18/2023

0 Comments

 

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.
. . . 
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.
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Court of Appeals for the Armed Forces

1/18/2023

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United States v. Pyron, stems from a rehearing after the case had been set aside because of a member issue. Original NMCCA published opinion, 81 M.J. 637 (N-M Ct. Crim. App. 2021) here.
​This case stems from an interlocutory appeal under Article 62, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 862 (2018). At a rehearing in this case, the military judge denied the Government’s motion to admit Appellant’s testimony from his original court-martial. We hold that the military judge abused his discretion by excluding this evidence. Because the United States Navy-Marine Corps Court of Criminal Appeals (CCA) reached the same conclusion, we affirm the judgment of the lower court.
. . .
​The Government then moved to admit Appellant’s testimony from his first trial under Military Rule of Evidence (M.R.E.) 801(d)(2) as an admission by a party opponent. Citing the standards imposed by relevant case law, the Government argued that the “testimony was not induced by the Government’s use of wrongfully introduced evidence nor was it the result of ineffective assistance of counsel.” The defense opposed the Government’s motion, asserting that Appellant’s prior testimony “was induced by the Government’s actions and it [was] unfairly prejudicial.”
What was the Government action? A member in the first trial had given answers in voir dire suggesting his having a daughter may affect his decision making. Yet neither party nor the MJ followed up on that. Later,
As the CCA noted in its decision, “neither trial counsel nor the military judge asked any further questions of LT Alpha” to rehabilitate him. Id. And yet later in the process, “the trial counsel [mistakenly] made arguments regarding the [defense] challenge for cause that suggested a rehabilitation colloquy had been conducted, and the military judge ​adopted those incorrect facts and based his denial of the [defense] challenge [for cause] upon them.” Nevertheless, the CCA did “not find that the trial counsel intentionally misled the military judge as to LT Alpha’s answers.” Instead, the lower court found that trial counsel made an “honest mistake.” But because of this prejudicial error, the court set aside and dismissed the findings and sentence and authorized a rehearing.
The question then becomes whether the "error" at the first trial is the type of prosecution misconduct that resulted induced Appellant's testimony at the first trial. Here is the nub of the answer.
There is a “general evidentiary rule that a defendant’s testimony at a former trial is admissible in evidence against him in later proceedings.” Harrison, 392 U.S. at 222). As explained by the Supreme Court:

     A defendant who chooses to testify waives his privilege against compulsory self-incrimination with respect to the testimony he gives, and that waiver is no less effective or complete because the defendant may have been motivated to take the witness stand in the first place only by reason of the strength of the lawful evidence adduced against him.

However, the Supreme Court announced an exception to this general rule: If the government engaged in illegal conduct and this conduct prompted the accused’s testimony, the government may not use “any testimony impelled” by this illegality because it is “the fruit of the poisonous tree.” Id. Thus, under Harrison, an accused’s testimony at a prior trial is admissible at a subsequent trial unless (1) the government engaged in illegal conduct at the first trial, and (2) the government’s illegal conduct induced the accused’s prior testimony. See id.
The Chief concludes that the TCs mistake is not the type of illegal conduct contemplated in the Harrison exception. It seems that

"in United States v. DeWitt, this Court’s predecessor definitively refused to extend the Harrison exception “to instances . . . where there is no primary illegality on the part of the Government’s” agents. 3 M.J. 455, 456 (C.M.A. 1977)."

DeWitt was a UA case. The appellant had unsuccessfully challenged admissibility of the Army form recording that he was absent from a certain date and time. He then changed his plea to guilty. However, the MJ rejected the guilty plea. So, it became a NG case again. At this point, the prosecution offered his statements made in response to his guilty plea along with the form and gained a conviction. On appeal CMA held it error to admit the form but found sufficient evidence from the providence (in court under oath) statements to sustain a conviction.

Because it was a judicial error in admitting evidence that caused the testimony

"Such lofty motive as prompted the Supreme Court in 
Harrison and this Court in Bearchild would not be served by extending this doctrine to instances such as this case, where there is no primary illegality on the part of the Government’s investigators."

Fn. 3 cites two federal cases with a similar result--judicial errors are not primary illegality of the prosecution.

In 
Pyron II we have a combination--a TC who was wrong about the voir dire of one member and whether he had been rehabilitated, a defense counsel who did not point that error out, and a military judge who had forgotten (or not noted) that the TC was wrong and so did not correct the error.

A collateral point from Pyron II would be that of situational awareness.

Sr. Judge Crawford was the sit-in judge for this unanimous opinion.
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By the numbers 2022

1/17/2023

3 Comments

 
Update: The number of Article 15s has dropped significantly as well. 150,00 in FY90, 80,000 in FY00, and 36,000 in FY22.
The JSC has published the joint report to Congress under UCMJ art. 140a.
​Courts-martial numbers continued their slide downward in FY22. In total the services completed 1,179 general and special courts. That is down from 1361 in FY21 and 1542 in FY19. For more historical perspective in FY15, the total was 1940, FY00 it was 4824 and FY90 was 9907. In FY60 the services completed 40,810 generals and specials.  

There were 670 GCMs and 509 SPCMs compared to 827 GCMs and 534 SPCMs in FY21. There were a total of 169 acquittals for a conviction rate of 86%. Only 283 courts were with members meaning 76% of all courts were judge alone.  

Numbers by service:

The Air Force completed 161 GCMs and 153 SPCMs. There were 43 acquittals for a conviction rate of 86%. For GCMs the conviction rate was 77% up from 55% in FY21. The Air Force had 113 member courts or 36%, which is the highest percentage of members courts of any of the services. The Air Force has 21 active duty judges. The report does not list the number of Reserve judges. This means there were 15 courts a year for each active duty judge. Of those, only 5 were with members.

The Air Force has 83 ADCs and 18 CDCs. The average ADC did 3.8 courts with 1.3 before members. The average ADC had .5 acquittals last fiscal year. Considering the ADC position is viewed as the place where Air Force JAGs get the litigation experience needed to become senior defense and trial counsel, this is worrisome. Additionally, civilian defense counsel or circuit defense counsel likely do most findings arguments. It seems probable that the average Air Force JAG will leave the ADC position without ever presenting a findings argument, especially before members. The Air Force completed 4183 Article 15s or about 50 per ADC. 

There are 23 CTCs which works out  to 7 GCMs a year if every GCM has an CTC detailed to the case. Highly unlikely. 66 of the GCMs were before members. That comes to 2.8 members GCMs per CTC in a year.  The Air Force has 1318 active duty JAGs with 580 captains and 367 majors, which averages out to .3 courts a year for a O-3/O-4 JAG. Of course, not all O-3s and O-4s are doing courts, but it does give perspective on litigation workload in the JAGC. By comparison, in FY90 the Air Force had close to the same number of JAGs but completed 1480 GCMs and SPCMs.

The Army completed 478 GCMs and SPCMs with 64 acquittals for a conviction rate of 87%.  242 of the courts were GCMs and 129 were SPCMs. 107 of the courts were before members or 22%. 153 of the cases were fully contested, 49 were mixed pleas and 276 were guilty pleas. I wish all the services provided this data, but this means it's possible to see the conviction rate in fully contested courts. When the accused pleaded not guilty to all charges in FY22, they were acquitted 42% of the time. The Army has 142 TDS JAGs, so this is basically one fully contested case a year per TDS attorney.  The Army had 24 active duty trial judges and 22 Reserve judges. I have no idea how often Reserve judges preside over Army cases, so it is difficult to figure out their workload. The Army has 1740 active duty JAGs with 543 majors and 896 captains.

The Marines did 206 GCMs and SPCMs in FY22 with 38 acquittals. The overall conviction rate is 82%. 93 of the courts were GCMs and 113 were SPCMs. Only 28 or 14% of the cases were before members. The Marines had the lowest percentage of members courts. I could not find the total number of defense counsel in the Marines, but the Marines have 72 JAGs who appear to act as trial counsel. If accurate this means about 3 courts per year for the average trial counsel.

The Navy did 181 GCMs and SPCMs in FY22 with 24 acquittals. The overall conviction rate was 87%. 81 of the courts were GCMs and 100 were SPCMs. The Navy and Marines have 27 active duty and 14 Reserve judges. That comes to 14 courts per year for each active duty judge. Again, that is certainly less depending how many were done by Reserve judges. 35 or 19% of the courts were before members. JAGs in the Navy/USMC appear to  have little opportunity to practice before members.
These rough and broad numbers were prepared for us by a colleague well familiar with the reports over the years. The numbers lead to some troubling questions or thoughts.

You can see our earlier stabs at numbers here.
3 Comments

Court of Appeals for the Armed Forces

1/13/2023

0 Comments

 
112 January 2023.

No. 23-0001/AR. U.S. v. Cameron M. Mays. CCA 20200623. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
 
WHETHER THE OFFENSE OF INDECENT VIEWING UNDER ARTICLE 120c, UCMJ, INCLUDES VIEWING A VISUAL IMAGE OF THE PRIVATE AREA OF ANOTHER PERSON.
 
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United States v. Dial

1/8/2023

7 Comments

 
Remember him?
An officer was sentenced Sunday to dismissal from the Army but no time in prison after being found guilty of attempting to sexually assault a teenage family member while visiting Disneyland Paris three years ago. [The prosecution had called for up to a five-year prison sentence.]
Lt. Col. Andrew J. Dial had faced three charges related to sexual assault, all of which he pleaded not guilty to during a nearly weeklong court-martial.
A jury of eight high-ranking officers found Dial not guilty of indecent conduct and three counts of abusive sexual contact, while convicting him Saturday on the attempted sexual assault charge.
Sua sponte the MJ
Pritchard described the verdicts as “inconsistent” after the jury announced them Saturday.
He questioned how there could be evidence to support a guilty verdict of attempted sexual assault if the accused also had been found not guilty of touching the family member’s breasts and genital area without consent.
Pritchard considered a motion of his own that would have rendered a not guilty verdict, but upon deliberation allowed sentencing to continue.
The MJ imposed the mandatory dismissal; which is good because otherwise he wouldn't have any appeal.
7 Comments

A GAO report of interest

1/7/2023

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By now we should all be aware that the Court of Appeals for the Armed Forces has granted a number of petitions challenging the civilian confinement conditions at facilities used to house Air Force prisoners. For example,
​No. 22-0280/AF. U.S. v. D'Andre M. Johnson. CCA 39676. 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 hereby granted on the following issue:
 
WHETHER MILITARY OFFICIALS ACTED WITH DELIBERATE INDIFFERENCE IN SENDING APPELLANT TO LOWNDES COUNTY JAIL—A CIVILIAN CONFINEMENT CENTER WITH "A HISTORY OF INHUMANE LIVING CONDITIONS"—AND WHETHER APPELLANT SUFFERED CRUEL AND UNUSUAL PUNISHMENT THEREBY WHEN, INTER ALIA, CONFINEMENT OFFICIALS FAILED TO PROTECT HIM FROM PHYSICAL ATTACK, WITHHELD HIS MAIL, WITHHELD VISITORS, AND WOULD NOT LET HIM GO OUTSIDE WHILE HE LIVED IN UNSANITARY CONDITIONS.
A new GAO Report to Congressional Committees suggests the problem may not be limited to civilian facilities but includes Air Force Military Confinement Facilities (MCF) (as well as the Marine Corps).

MILITARY  CORRECTIONAL FACILITIES: Consistent Application  of Standards and  Improved Oversight  Could Enhance  Health and Safety. GAO-23-105082, 22 December 2022. From the introduction,
The Office of the Secretary of Defense (OSD) and the military departments have developed health and safety standards for military correctional facilities (MCFs). However, GAO found that the Air Force does not routinely assess its MCFs for adherence to these standards. Specifically, it is the only service that has not ·

     required the routine assessment of adherence to a uniform set of MCFspecific health and safety standards,

     and · assessed all of its MCFs to determine adherence with these standards.

By routinely assessing all of its MCFs, the Air Force could better ensure that its MCFs are meeting health and safety standards, and identify and respond to any potential risks to the health and safety of MCF staff and incarcerated persons.
. . . 
Inspections from 2017 to 2019 at an Air Force base identified structural and procedural deficiencies at the Air Force MCF. In 2020, an investigation prompted by a December 2019 suicide at the MCF resulted in an almost year-long closure of the MCF to address deficiencies identified. The Air Force has plans to address the remaining facility deficiencies identified in the earlier inspections; that work is expected to begin in fiscal year 2023.
What's interesting here is the absence of attention to civilian facilities used to confine military personnel. Perhaps another report will forthcoming. 

See also our post of 20 July 2022 on the Velasquez case, and here for Pullings.
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The Daily (?) Journal

1/7/2023

1 Comment

 
CAAF has not updated its Daily Journal since December 21, 2022. 
1 Comment

Brooker & Morales:  Restoring Faith in Military Justice

1/4/2023

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"The military justice system was designed to maintain good order and discipline, strengthen national security, and achieve justice. After military leaders failed to effectively address the sexual assault crisis within the armed forces, Congress lost faith in this system. In response, Congress enacted sweeping legislative reform, transferring prosecutorial discretion for the most serious offenses from commanders to military lawyers. Unlike civilian prosecutions, most decisions within the military justice system have overwhelmingly favored one consideration: maintaining good order and discipline in the unit. While Congress’s reforms change who makes the decisions in many cases, they will have little effect unless military leaders also broaden the underlying criteria upon which their recommendations and decisions are made.
​

This Article proposes an innovative framework to assist military leaders in implementing a holistic approach to decision-making. Borrowing from the law of armed conflict, we propose a test that empowers decision makers to consider all the federal principles of prosecution and sentencing that Congress has repeatedly indicated should serve as touchstones for reform. When employing this framework, military justice decision makers will better account for the long-term impact on accused service members, society, and victims rather than solely focus on short-term deterrence within the unit. This proposal attempts to bring military prosecutions more in line with the criteria applied by civilian federal prosecutors and restore credibility in the military justice system, thereby enabling it to continue to do what it was designed to do."

Read the full article here.


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Year in Review

1/1/2023

1 Comment

 
“The more things change, the more they stay the same” is how I characterized the state of the military death penalty more than four years ago.  Global Military Justice Reform: Death row SITREP (globalmjreform.blogspot.com).  As 2022 draws to a close, that description remains apt.
 
Ronald Gray has been a military death row inmate longer than anyone.  He was sentenced to death on April 12, 1988, for a series of murders and rapes in the Fort Bragg area.  On July 28, 2008, President George W. Bush approved his death sentence – the only time a President has approved a military death sentence since the Eisenhower administration.  Gray currently has a habeas petition pending in the United States District Court for the District of Kansas.  That petition has been stayed since March 2022 as the court and the parties await rulings from the 10th Circuit in two cases that could provide guidance concerning Article III courts’ scope of review when considering collateral attacks to court-martial proceedings.  Those two cases--Santucci (20-3149) and Bales (20-3167)—were each argued in September 2021, so decisions could be imminent.
 
Hasan Akbar has been Gray’s neighbor the longest.  Akbar was sentenced to death in 2005 for two specifications of premeditated murder and three specifications of attempted premeditated murder on March 22, 2003, when he attacked members of the 101st Airborne Division as they prepared to invade Iraq.  SCOTUS denied his cert petition in 2005, making the case ripe for presidential action.  (In the military justice system, the president must take the affirmative step of approving a death sentence to allow it to be carried out.  UCMJ art. 57(a)(3), 10 U.S.C. § 857(a)(3).  As Gray’s case demonstrates, however, even after presidential action, there will likely be a long delay before an execution actually occurs—if one ever does.)
 
Master Sergeant Timothy Hennis, U.S. Army (Ret.), arrived on military death row in 2010, having been sentenced to death by a court-martial for three murders in 1985 for which he was originally convicted and sentenced to death in a North Carolina state court and then, following the North Carolina Supreme Court’s reversal on evidentiary grounds, acquitted. SCOTUS denied cert in 2021, making the case ripe for presidential action.  It may be the most interesting case in the history of military justice.
 
The most recent arrival on military death row is Major Nidal Hasan, who was sentenced to death in 2013 for 13 specifications of premeditated murder and 32 specifications of attempted murder arising from his 2009 attack against personnel at Fort Hood.  ACCA affirmed the death sentence in 2020.  United States v. Hasan, 80 M.J. 682 (A. Ct. Crim. App. 2020) (en banc).  The case is currently being briefed at CAAF; appellant’s reply brief is due on Jan. 3, 2023.  An oral argument during calendar year 2023 seems likely.
 
No U.S. military execution has occurred since April 13, 1961.  Plus ça change . . . .

Dwight Sullivan

[Disclaimer:  The views presented are those of the author and do not necessarily represent the views of DoD or its components; they are made in the author’s personal capacity and should not be imputed to anyone else.]

1 Comment

Supreme Court of Oregon

12/30/2022

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Ramos is "retroactive."[1] Yes, that is what the highest court in Oregon concludes in Watkins v. Ackley, under Oregon law.

[1] See footnote 2 discussing why the term retroactive is misleading.
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