RAF chief Sir Mike Wigston has been told he must fix its "rigged" court martial system - with a legal expert claiming incidences of incident (sic) exposure, assault, intimidation and even rape were frequently going unpunished.

However, a Ministry of Defence spokesman stressed there was no place for sexual assault or harassment within the armed forces - and pointed out the conviction for rape within the Service Justice System was four times lower than that of the civilian system. Kate Roos, Senior Solicitor in the Military Claims Team at Bolt Burdon Kemp, was speaking after whistleblowers complained of a bullying environment within the Red Arrows, which had led to three leaving the team.
. . .

[V]iewed as a proportion of allegations reported, rather than of cases prosecuted, the conviction rate in the Service Justice System is around eight percent compared to around two percent in the civilian system.

Cross-posted with GMJR.

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Sergeant First Class@expressed a strongly held belief that consent to sexual intercourse must be expressed verbally. When asked by the defense counsel, "[d]o you think consent to sexual intercourse has to be verbal?" SFC responded, "[y]es." Defense counsel then quoted the definition of consent that the military judge would later use in instructions. and then asked: "[s]o if you saw the words 'consent is a freely given agreement,'you would think that agreement has to be a verbal agreement?" SFC responded with: "(i]t has to be verbal without intoxication."

When it came time for the MJ to question SFC he attempted torehabilitate the member, asking, "[i]f my definition of consent differs from you[r] own personal beliefs, would you be able to follow my definition?" to which SFC replied, "[y]es, sir."

During their turn to question SFC the government revisited his understanding of consent, again attempting to rehabilitate the panel member, asking: "If someone else were to indicate with a thumbs up or a nod, would that be interpreted as consent for you?" SFC replied, "I would have to hear it, personally." And when asked one final time if it was his personal view that consent must be verbal, SFC responded, "[a] thumbs up or a nod could be a miscommunication between the two, so it's best to clear it up." 

​R.C.M. 914 requires the government to make available to the defense, after a witness has testified, any statement possessed by the United States that the witness has made. In its opinion, the lower court agreed that the military judge erred in her application of R.C.M. 914. However, the lower court determined that the error did not substantially influence the findings.

After review of the record, we conclude that the military judge’s error in not striking the relevant testimony pursuant to R.C.M. 914 had a substantial influence on the findings. Consequently, the lower court’s decision is reversed and the findings and sentence are set aside.

Today, the Department of Defense (DOD) released the Fiscal Year 2021 Annual Report on Sexual Assault in the Military.
This year’s report, which is required by Congress and published by DOD’s Sexual Assault Prevention and Response Office, contains survey results, reporting data, and military justice case outcomes.  The report also provides updates on the Department’s efforts to prevent and respond to sexual assault throughout Fiscal Year 2021.
. . . 
The Fiscal Year 2021 Annual Report on Sexual Assault in the Military and a fact sheet with the topline results are available on https:// www.sapr.mil/reports

Appellant asserts trial counsel’s statement that the court had “heard no evidence” that Appellant had “actually gotten help” during the “yearand-a-half” of investigation was improper because the Defense had no obligation to put on evidence. The implication of trial counsel’s comment was that the Defense had failed to introduce such evidence. We agree this argument by trial counsel was, at a minimum, poorly phrased. Trial counsel is generally not permitted to comment on the failure of the defense to produce evidence. Taylor, 47 M.J. at 324 (C.A.A.F. 1997). Although Taylor and the cases cited therein dealt specifically with evidence for findings, with regard to sentencing evidence this court has noted: “Whenever trial counsel chooses to argue that an accused has not ‘shown’ the sentencing authority something, counsel treads backwards into a mine field in over-sized galoshes while wearing a blindfold.” United States v. Feddersen, No. ACM 39072, 2017 CCA LEXIS 567, at *9 (A.F. Ct. Crim. App. 21 Aug. 2017) (unpub. op.). In response, the Government cites United States v. Edwards for the principle that trial counsel may comment on an accused’s expression of remorse in an unsworn statement that “can be arguably construed as being shallow, artificial, or contrived.” 35 M.J. 351, 355 (C.M.A. 1992) (citations omitted). However, this response misses the mark. The concern is not that trial counsel commented on Appellant’s unsworn statement, but that he did so by implying the Defense failed to introduce evidence substantiating Appellant’s statement, rather than referring to “other evidence in the record which gives rise to the inference that [the] accused [wa]s not remorseful.”

​Subsequent to entering into a pretrial agreement, Appellant filed a motion for the military judge to recuse himself. Appellant argued there was an appearance of bias because the continuances, and joinder of an additional charge for misconduct during the trial, adversely affected the military judge and his docket. The military judge invited written pleadings, and, in the hearing on the motion, allowed Appellant to voir dire him. Through this questioning, the military judge explained that during sentencing he would consider only the evidence properly admitted, that he harbored no animus towards Appellant, and this would be no different from any other time when he had to compartmentalize information while presiding over courts-martial. The military judge also informed counsel that neither the scheduling complications for the case nor the length of the court-martial caused him any personal problems. Following the military judge’s denial of the recusal motion, Appellant pleaded guilty, and elected trial by military judge alone, after being advised that the same military judge that he requested recuse himself would be his sentencing authority. The parties agreed that Appellant’s guilty plea did not waive the recusal motion on appeal.

(1) the sentence limitation portion of the plea agreement contained impermissible limitations under a plain reading of R.C.M. 705(d) and should not have been accepted.

(2) the plea agreement contained a prohibited and unenforceable provision requiring the military judge to award a specific sentence, violating public policy.

Consistent with our recent opinion in United States v. Rivero, we find that Appellant’s assignments of error lack merit. As in Rivero, “Appellant negotiated the provisions of his plea agreement in accordance with R.C.M. 705(d)(1) and enjoyed complete sentencing proceedings as required by R.C.M. 1001 and 1002. Accordingly, we find the presence and effect of the sentence limitation provision in this case accorded with the President’s statement of public policy.” Because we find “that Appellant did receive complete presentencing proceedings, that his plea agreement’s punishment limitations did not render those proceedings meaningless, and that the terms of his plea agreement did not violate public policy, we find [these AOEs] to be without merit.”

​82 M.J. 629 (N-M. Ct. Crim. App. 2022) (finding that specific sentence limitations within a plea agreement do not violate the Rules for Courts-Martial or public policy), review granted, __ M.J. __, 2022 CAAF LEXIS 484 (C.A.A.F., July 11, 2022).

The military judge granted Appellant’s motion, and the Government filed an interlocutory appeal with the United States Army Court of Criminal Appeals (ACCA) which reversed. Appellant appealed the ACCA’s decision to this Court, and we reverse again. The military judge did not abuse his discretion in holding: (1) PFC Avery lacked common authority to consent to the search of Appellant’s phone; (2) the Government failed to prove that the evidence was subject to the inevitable discovery doctrine; and (3) Appellant’s later voluntary consent to search the phone was not sufficiently attenuated from the unlawful search to cure that error.

“Whether the Army Court erred in its abuse of discretion analysis by (1) creating a novel test for common authority, (2) failing to give deference to the military judge’s findings, (3) comparing a modern cell phone to a traditional “container,” and (4) finding error based on a difference of opinion.”

Because we are aware of no binding precedent that equates physical access with common authority or that requires express or actual restrictions on use, we disagree that the military judge misapplied the law.
 
Neither the Supreme Court nor this Court has ever held that the scope of a person’s common authority over property is coextensive with that person’s access to the property. If that were true, determining whether common authority existed would be trivial. The only question would be whether the person who consented to the search had access to the searched property. Under the Government’s theory, a property owner would “assume the risk” that another person might provide consent to an unlimited search by law enforcement simply by giving that person limited, temporary possession over their property. Yet that is not how the analysis in common authority cases proceeds.
 
In Rader, this Court expressly rejected the idea that the owner of a computer that was also used by a third party could not limit the scope of the third party’s access to certain applications or files. 65 M.J. at 34. And although the Court recognized that one way of restricting access was through the use of technological restraints such as passwords or encryption, we also acknowledged that courts should consider “whether the defendant otherwise manifested an intention to restrict third-party access.” Id. (internal quotation marks omitted) (citation omitted). Accordingly, even though Appellant had not password protected or encrypted the photo galleries containing the child pornography, that does not mean that Appellant could not have excluded those galleries from the scope of PFC Avery’s common authority.
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[…] Although we might have reached a different conclusion than the military judge in the first instance, we are mindful that there must be more than a mere difference of opinion to establish an abuse of discretion. The military judge’s decision was not based on clearly erroneous facts, and it was not “arbitrary, fanciful, clearly unreasonable, or clearly erroneous.” Solomon, 72. M.J. at 179 (internal quotation marks omitted) (citation omitted). The military judge did not exhibit an erroneous view of the law, and he did not abuse his discretion in suppressing the evidence obtained from Appellant’s phone.”

Jake Dianno

Jake is a 2L at Villanova Law who is externing with NIMJ.

While the chain of events may initially give one pause over concerns of forum shopping, we are confident this was not the case here. First, the record establishes that the District Court had jurisdiction over both the offense and the place where the object of the search warrant was located. Second, the supporting affidavit clearly explained why NCIS was seeking authority from the District Court and not a military magistrate. As found by the military judge, NCIS went to great lengths to ensure nothing related to the earlier searches or any evidence collected after 19 January 2017 tainted the new warrant. The decision to seek a warrant from the District Court reflected the agents’ belief in the fact it was unlikely that any military judge at Camp Pendleton would be free of knowledge of the case—particularly regarding the results of the February 2020 search.
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Rather than view this as an attempted evasion of the exclusionary rule’s effects, we see this as validation of the rule. The NCIS agents learned and applied the “harsh lesson” the military judge intended to deliver by excluding the evidence derived from the February 2020 search. Being told their previous probable cause affidavit was “insufficient to establish PC,” the agents set about correcting their failure. In doing so, they provided a much more robust, 17-page affidavit including all relevant evidence known as of the date of the original application for authorization to search Appellant’s MacBook laptop. The military judge concluded that the last affidavit was both sufficient to establish probable cause and untainted by any activity after 19 January 2017. We agree.

Sort of guest post

from John Wesley Hall,  Fourth Amendment.com. His site is one of our daily reads.