Coverage abounds of the recently filed appeal of PFC manning at the Army Court of Criminal Appeals, here (AP via Army Times), here (ABC News), here (AP via Stars&Stripes), and here (Wired)–yes, some of that is naval gazing.

Here is a link to the brief, all 209 pages, which features what it presents (at 34-44) as a seeming circuit split on application of  “exceeds authorized access” in the one specification of violating 18 U.S.C. § 1030(a)(1) (the Computer Fraud and Abuse Act (CFAA)).  The first argument doesn’t seem like a strong attack on the pre-trial punishment violations that Judge Lind remedied by awarding 112 days of additional pre-trial confinement credit.  And the RCM 1001(b)(4) argument is interesting in alleging that the parade of testimony concerning the potential impact of the leaks made by PFC Manning was not “directly relating to or resulting from the offenses”–though the argument focuses on “resulting from” and fails to discuss what the broader phrase “relating to” means.

It is difficult for me to comment on the legal and factual sufficiency arguments, but feel free to speculate if you have more information about the evidence than I do (or even if you don’t, which will likely happen).

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court, where I’m tracking two cases:

This week at CAAF: CAAF has completed its oral argument calendar for the term. Details about this terms cases are available at our 2015 Term of Court page.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on June 14, 2016.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard CCA’s oral argument schedule shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

Congress provided specific criteria for member selection in Article 25(d)(2):

When convening a court-martial, the convening authority shall detail as members thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.

Rank is not one of these factors. Last term, in United States v. Ward, 74 M.J. 225 (C.A.A.F. 2015) (CAAFlog case page), and United States v. Sullivan, 74 M.J. 448 (C.A.A.F. 2015) (CAAFlog case page), CAAF found the improper categorical exclusion of members on the basis of rank to be harmless. But with a grant of review on Monday, CAAF will revisit this issue:

No. 16-0391/MC. U.S. v. Emmanuel Q. Bartee. CCA 201500037. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

THE SYSTEMATIC EXCLUSION OF INDIVIDUALS BY RANK FROM THE MEMBER-SELECTION PROCESS IS PROHIBITED. HERE, THE MILITARY JUDGE DISMISSED THE PANEL FOR VIOLATING ARTICLE 25, UCMJ, BUT THE CONVENING AUTHORITY RECONVENED THE EXACT SAME PANEL THE SAME DAY. IS THIS SYSTEMATIC EXCLUSION BASED ON RANK REVERSIBLE ERROR?

Briefs will be filed under Rule 25.

The NMCCA’s opinion is available here and reveals that:

Prior to trial, the defense objected to the exclusion of junior members under convening order #1b-13, which appointed only officer members O-4 and above, enlisted members E-8 and above, and no warrant officers. This panel was detailed after the staff judge advocate (SJA) solicited only these specific categories of senior nominees from subordinate commanders. The SJA provided the CA draft convening order #1b-13 and the applicable questionnaires for consideration. The CA then picked those members as were suggested to him by the SJA without modification. The military judge agreed with the defense’s objection finding that the panel selection process improperly excluded potential members based on rank.

Subsequently, the CA was provided a draft, amended convening order, #1c-13, containing the same members previously detailed under convening order #1b-13. The CA was also furnished with his entire alpha roster of over 8,000 members with instructions that he could substitute any proposed member for someone senior to the accused meeting the Article 25 criteria. After consideration, the CA detailed the same members stating, “I know these individuals personally and selected them specifically because I am convinced they meet the qualifications for membership.”

Slip op. at 5. The military judge found no impropriety in the second convening order and the CCA affirmed.

That’s the idea behind a bill introduced in the House on Monday – H.R.5257,  the Justice for Victims of Military Sexual Assault Act:

IN GENERAL.—The Secretary of each military department shall establish a career military justice litigation track for judge advocates in the Armed Forces under the jurisdiction of the Secretary.

The Navy already has such a program. See JAGINST 1150.2C (available here).

Cully Stimson of the Heritage Foundation has commentary in favor of this proposal, available here.

CAAF decided the certified Navy case of United States v. Clark, __ M.J. __, No. 16-0068/NA (CAAFlog case page) (link to slip op.), on Tuesday, May 17, 2016. In a short opinion the court rejects the certified issues, declining the invitation of the Judge Advocate General of the Navy to impose a standard for a CCA’s treatment of special findings by a military judge and affirming the decision of the Navy-Marine Corps CCA that found the appellee’s convictions of rape and forcible sodomy factually insufficient.

Judge Stucky writes for a unanimous court.

Read more »

CAAF decided the Army case of United States v. Caldwell, __ M.J. __, No. 16-0091/AR (CAAFlog case page) (link to slip op.), on Monday, May 16, 2016. Finding that there is no scenario where an accused could innocently engage in the kind of conduct prohibited by the military offense of maltreatment, CAAF concludes that the military judge’s instructions were not erroneous in this case but also provides specific guidance for instructions in future cases. The court affirms the appellant’s convictions and the decision of the Army CCA.

Judge Ohlson writes for a unanimous court.

CAAF granted review of one issue in this case (and that issue was personally asserted by the appellant (discussed here)):

Whether the military judge committed plain error when he instructed the panel using a negligence standard for maltreatment of a subordinate in violation of Article 93.

A general court-martial composed of members with enlisted representation convicted Sergeant First Class Caldwell, contrary to his pleas of not guilty, of maltreatment in violation of Article 93 and abusive sexual contact in violation of Article 120. The convictions were related to Caldwell’s unwanted sexual advances towards, and inappropriate workplace touchings of, a subordinate. Caldwell was sentenced to reduction to E-1 and a bad-conduct discharge.

Article 93 prohibits cruelty toward, or oppression or maltreatment of a subordinate. To win a conviction for maltreatment, however, the Government need not prove that the accused actually intended cruelty, oppression, or maltreatment, or even that there was actual harm to the alleged victim. Rather, “the essence of the offense is abuse of authority,” United States v. Carson, 57 M.J. 410, 415 (C.A.A.F. 2002), and the accused’s conduct is “measured by an objective standard,” MCM pt. IV, para. 17.c.(2). But in its recent decision in Elonis v. United States, 575 U..S. __, 135 S. Ct. 2001 (2015), the Supreme Court held that “federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state.” 135 S. Ct. at 2012. Further, the Court held that “the presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct.” 135 S.Ct. 2011. And so the issue in Caldwell was whether a post hoc objective determination that certain conduct constitutes maltreatment is adequate in the absence of some other degree of culpability in the mind of the accused.

In Monday’s decision, Judge Ohlson explains that such an objective standard is adequate because “there is no scenario where a superior who engages in the type of conduct prohibited under Article 93, UCMJ, can be said to have engaged in innocent conduct.” Slip op. at 7.

Read more »

CAAF decided the Coast Guard case of United States v. Rogers, __ M.J. __, No. 16-0006/CG (CAAFlog case page) (link to slip op.), on Monday, May 16, 2016. In a case that questioned whether a member was biased by her professional and personal experiences with sexual assault, CAAF holds that the member’s uncorrected misunderstanding about an intoxicated person’s ability to consent to sexual activity constituted implied bias. As a result, the court reverses the findings and sentence and the decision of the Coast Guard CCA, authorizing a rehearing.

Chief Judge Erdmann writes for the court, joined by Judges Ryan and Ohlson and Chief Judge Whitney of the United States District Court for the Western District of North Carolina (sitting by designation). Judge Stucky writes separately, concurring in the result.

Electrician’s Mate Third Class Rogers was charged with numerous offenses, including two specifications of sexual assault of a person who was incapable of consenting due to impairment by an intoxicant. The defense challenged a potential member for actual and implied bias based on the member’s duties (that included addressing sexual assault issues and interacting with victims), her personal experiences (her older brother was convicted of child molestation), and her expressed belief that “if you are so drunk that you can’t remember giving consent, then you are too drunk to give consent.” Slip op. at 7 (quoting record). The military judge denied the challenge, and Rogers was convicted and sentenced to confinement for ten years, reduction to E-1, total forfeitures, and a bad-conduct discharge. The Coast Guard CCA reviewed the member challenge issue and found no error. CAAF then granted review to determine:

Whether the military judge erred in denying the implied bias challenge against CDR K in light of her various professional and personal experience with sexual assault.

“The core of the implied bias test is the consideration of the public’s perception of fairness in having a particular member as part of the court-martial panel.” Slip op at. 2 (citation and marks omitted). Despite the granted issue focusing on the member’s experiences, however, Chief Judge Erdmann’s majority opinion finds implied bias in the member’s erroneous belief that a person who can’t remember consenting necessarily couldn’t consent. And Judge Stucky’s concurring opinion goes even further, finding that the member’s erroneous belief constituted actual bias because the military judge failed to correct it with an appropriate instruction. Ultimately CAAF is unanimous in finding bias in the member’s uncorrected belief that too drunk to remember means too drunk to consent.

This result makes this case a surprise development in the continuing effort to address the issue of competency to consent, our #9 Military Justice Story of 2015.

Read more »

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court, where I’m tracking two cases:

This week at CAAF: CAAF has completed its oral argument calendar for the term. Details about this terms cases are available at our 2015 Term of Court page.

This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard CCA’s oral argument schedule shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

Marine Major Mark Thompson, who faces new charges (discussed here) after he invited the Washington Post to look into his court-martial conviction (discussed here), elected to not participate in the Article 32 preliminary hearing in his case yesterday.

The Marine Corps Time reports (here) that:

Kevin McDermott, the civilian lawyer for Marine Corps Maj. Mark Thompson, called the hearing at Quantico Marine Corps Base a “show trial.” After Thompson was advised of his rights, he and his lawyers walked out of the hearing, making themselves “voluntarily absent,” in military jargon.

Additionally, the Washington Post reports (here) that:

Marine Maj. Mark Thompson’s friends warned him to leave his case alone. But he couldn’t, a fellow Marine later told investigators.

The former U.S. Naval Academy teacher was fixated on proving that he had been unfairly convicted in 2013 of having sex with two female midshipmen. So he brought his allegations of injustice to The Washington Post — a decision that led to revelations in the case and serious new charges against Thompson.

“I knew it was stupid. There were people who tried to talk him out of the Post article, but he wouldn’t hear it,” Maj. Michael Pretus told investigators in a recording played Friday at Thompson’s preliminary hearing in Quantico, Va. “He was on an obsession course. You couldn’t get him to talk about anything else.”

Yesterday, of course, was Friday the 13th.

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted in the statement. Many things aren’t hearsay (such as an out-of-court statement offered to show only its effect on the listener), and there are many exceptions to the hearsay rule that permit admission of a hearsay statement under various situations.

Two interesting grants from CAAF last week involve the hearsay rule.

First, in the Air Force case of United States v. Bowen, CAAF specified an issue involving a statement admitted as an excited utterance:

No. 16-0229/AF. U.S. v. Ellwood T. Bowen. CCA 38616. 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 specified by the Court:

Whether the military judge erred in applying the “excited utterance” exception to the hearsay rule to permit the government to introduce through the testimony of law enforcement personnel that appellant’s wife nodded her head in response to a question whether her husband “did this,” and in concluding that the prejudicial effect of this testimony was outweighed by its probative value. See M.R.E. 802 and 803(2); M.R.E. 403; United States v. Donaldson, 58 M.J. 477 (2003); United States v. Jones, 30 M.J. 127 (C.M.A. 1990); United States v. Arnold, 25 M.J. 129 (C.M.A. 1987); United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980), cert. denied, 450 U.S. 1001 (1981).

Briefs will be filed under Rule 25.

An excited utterance is hearsay that is admissible because it is “relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.” Mil. R. Evid. 803(2). The Air Force CCA’s opinion in Bowen is available here and reveals that law enforcement responded to reports of screaming and discovered Bowen’s wife unconscious in the bathtub, and that she was only partially conscious when she was questioned. The military judge considered the circumstances and concluded that the head nod was admissible as an excited utterance, and the AFCCA affirmed that ruling.

Next, in the Army case of United States v. Swift, CAAF granted review of two issues and specified a third:

No. 16-0407/AR. U.S. v. Justin P. Swift. CCA 20100196. 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 issues raised by Appellant:

I. Whether the Army court denied appellant his substantial right to an Article 66(c) review by affirming the findings and sentence on uncharged misconduct presented at trial rather than the charged offenses.

II. Whether the military judge erred by admitting appellant’s pretrial statement where there was no independent evidence to corroborate the essential facts admitted.

And the following issue specified by the Court:

III. Whether the evidence of the two convictions of indecent acts with a child is legally sufficient.

Briefs will be filed under Rule 25.

The Army CCA’s opinion is available here. It’s hard to clearly identify the uncharged misconduct at issue, but the CCA focuses on the military judge’s ruling that permitted a teacher to testify about an out-of-court statement that the child made to her years earlier. The military judge introduced the statement as “victim’s outcry evidence,” and the CCA rightly finds that this ruling was error because there is no such exception to the hearsay rule (though there used to be; see ¶ 142(c), MCM (1969) (available here)). However, the CCA concludes that the statement was admissible for a non-hearsay purpose:

[W]e conclude, first, that the military judge inappropriately applied the outdated “victim outcry” principle. Nonetheless, we agree that a non-hearsay basis exists to allow the admission of the statement – namely, effect-on-the-listener. KS’s out-of-court statement is not barred by Mil. R. Evid. 802 because it was not offered for the truth of the matter asserted. Despite the military judge’s ruling on the out-of-date notion of “outcry doctrine,” the trial counsel specifically offered the victim’s statement as “effect on the listener” and as a “prior consistent statement.” The statement was properly offered to show why Ms. A contacted CPS and how the investigation ensued.

United States v. Swift, No. 20100196, slip op. at 4-5 (A. Ct. Crim. App. Jan. 21, 2016) (emphasis). This conclusion is deeply problematic for at least three reasons. First, there’s no indication that the members were instructed about any limitation on the use of the statement the judge considered the statement for only a limited purpose, and the CCA can’t restrict its use post hoc. Second, the effect on the listener (that CPS was contacted) was not an issue at trial, and so the statement had no probative value (but a high prejudicial effect). Third, there’s no indication of any foundation for admission of a prior consistent statement (and a footnote acknowledges this).

Despite its butchery of the hearsay rule, the CCA concluded that the admission of the statement was harmless in part based on the appellant’s pretrial admissions. CAAF’s grant of review, however, directly challenges that conclusion.

CAAF decided the certified Air Force case of United States v. Gay, 75 M.J. 264, No.s 15-0742/AF & 15-0750/AF (CAAFlog case page) (link to slip op.), on Wednesday, May 11, 2016. Recognizing that there are limits on the power of the courts of criminal appeals to grant sentence appropriateness relief, CAAF nevertheless concludes that the Air Force CCA could grant sentence appropriateness relief without first finding the existence of cruel and unusual punishment in violation of Article 55 or the Eighth Amendment.

Chief Judge Erdmann writes for a unanimous court.

After being convicted by a general court-martial, Staff Sergeant Gay received a sentence of confinement for six months, total forfeitures, reduction to E-3, and a bad-conduct discharge. He was then confined at a civilian facility where he was initially held in close proximity to a foreign national in violation of the co-mingling provision of Article 12. That provision was addressed last term in the companion cases of United States v. McPherson, 73 M.J. 393 (C.A.A.F. Aug. 21, 2014) (CAAFlog case page), and United States v. Wilson, 73 M.J. 404 (C.A.A.F. Aug. 21, 2014) (CAAFlog case page).

Gay complained (and ultimately received nine days of confinement credit from the convening authority). But Gay was also placed in solitary confinement, seemingly to avoid further co-mingling in violation of Article 12. That solitary confinement formed the basis for a separate complaint of cruel and unusual punishment. The Air Force CCA disagreed that Gay’s solitary confinement constituted cruel and unusual punishment, however the CCA nevertheless reduced the sentence to confinement for three months, reduction to E-3, and a bad-conduct discharge.

The Air Force JAG then certified the case to CAAF, and the court subsequently granted review of a second issue:

Certified Issue: Whether the Air Force Court of Criminal Appeals (AFCCA) abused its discretion and committed legal error by reaching its decision that Article 66, UCMJ, grants it the authority to grant sentence appropriateness relief for post-trial confinement conditions even though there was no violation of the Eighth Amendment or Article 55, UCMJ, in direct contravention of this court’s binding precedent.

Granted Issue: Whether the Air Force Court of Criminal Appeals erred by failing to remand appellant’s case for a hearing pursuant to United States v. Dubay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), to determine the facts surrounding appellant’s post-trial solitary confinement. See United States v. Ginn, 47 M.J. 236 (1997).

In Wednesday’s opinion CAAF finds that the Air Force court did not abuse its discretion (rejecting the certified issue) and the court does not address the granted issue (because both sides agreed that it was not error for the CCA to fail to remand).

CAAF’s decision in this case is consistent with, but not as broad as, its decision in United States v. Chin, 75 M.J. 220 (C.A.A.F. Apr. 29, 2016) (CAAFlog case page), in which the court concluded Article 66(c) commands a court of criminal appeals to conduct a plenary review of a case, including a review to determine whether to leave a trial-stage waiver of an error intact. Rather than relying on a plenary authority, Chief Judge Erdmann focuses on the existence of “a legal deficiency in the post trial conditions to which Gay was subjected.” Slip op. at 9. Specifically:

As the CCA explained, its conclusionwas based, in part, on the fact that solitary confinement was imposed for an improper purpose – Gay did not engage in behavior that would have warranted solitary placement; the conditions of confinement were more severe than what he should have experienced; and the confinement was ordered by an Air Force official to avoid Article 12 violations where an alternative solution was available. While the CCA found that the conditions did not rise to the level of an Eighth Amendment or Article 55 violation, those conditions provide support for the exercise of the CCA’s discretionary sentence appropriateness authority.

Slip op. at 9. Chief Judge Erdmann then ends his opinion for a unanimous court with something of a disclaimer:

In reaching this conclusion, we do not recognize unlimited authority of the Courts of Criminal Appeals to grant sentence appropriateness relief for any conditions of posttrial confinement of which they disapprove. Rather, we hold that the Air Force Court of Criminal Appeals’ decision to grant sentence appropriateness relief in this case was based on a legal deficiency in the post-trial process and, thus, was clearly authorized by Article 66(c).

Slip op. at 10.

Case Links:
AFCCA opinion
Blog post: The AFCCA finds that using solitary confinement to avoid violating Article 12 isn’t cruel and unusual, but deserves relief
Blog post: The Air Force JAG certifies two cases to CAAF
Blog post: CAAF specifies an additional issue in Gay
Appellant’s brief (granted issue)
Appellee’s (Government) brief (granted issue)
Cross-appellant’s (Government) brief (certified issue)
Cross-appellee’s brief (certified issue)
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

Audio of today’s arguments at CAAF is available at the following links:

United States v. Howell, Nos. 16-0289/MC & 16-0367/MC (CAAFlog case page): Oral argument audio.

EV v. United States & Martinez, No. 16-0398/MC (CAAFlog case page): Oral argument audio.

Audio of yesterday’s oral arguments at CAAF is available at the following links:

United States v. Evans, No. 16-0019/AR (CAAFlog case page): Oral argument audio.

United States v. Hills, No. 15-0767/AR (CAAFlog case page): Oral argument audio.

On April 29 the Air Force JAG certified Fetrow:

No. 16-0500/AF. U.S. v. Justin L. Fetrow. CCA 38631. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:

I. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS COMMITTED LEGAL ERROR WHEN IT FOUND THAT IN ORDER FOR CONDUCT TO CONSTITUTE CHILD MOLESTATION UNDER MIL. R. EVID. 414, THE CONDUCT MUST HAVE BEEN AN OFFENSE UNDER THE UCMJ, OR FEDERAL OR STATE LAW, AT THE TIME IT WAS COMMITTED AND, IF OFFERED UNDER MIL. R. EVID. 414(d)(2)(A)-(C), THAT THE CONDUCT MUST MEET THE DEFINITION OF AN OFFENSE LISTED UNDER THE VERSION OF THE APPLICABLE ENUMERATED STATUTE IN EFFECT ON THE DAY OF TRIAL.

II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS COMMITTED LEGAL ERROR WHEN IT FOUND THAT THE ERRONEOUS ADMISSION OF TWO ACTS OF INDECENT LIBERTIES COMMITTED BY APPELLEE ON HIS CHILD AGE DAUGHTER HAD A SUBSTANTIAL INFLUENCE ON THE MEMBERS’ VERDICT REQUIRING SET ASIDE OF THE FINDINGS AND SENTENCE.

Appellant will file a brief under Rule 22(b) in support of said certificate on or before the 31st day of May, 2016.

I discussed the Air Force CCA’s opinion in Fetrow here.

Additionally, on May 3 CAAF granted review in three cases:

No. 16-0267/AR. U.S. v. Nathan C. Wilson. CCA 20140135. 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 personally asserted by appellant:

WHETHER THE MILITARY JUDGE ERRED IN DENYING THE DEFENSE MOTION FOR APPROPRIATE RELIEF UNDER RULE FOR COURT-MARTIAL 917 WHERE THE MILITARY JUDGE IMPROPERLY APPLIED ARTICLE 130, UCMJ, HOUSEBREAKING, TO A MOTOR POOL.

Briefs will be filed under Rule 25.

The Army CCA’s opinion in Wilson is available here.

No. 16-0296/AF. U.S. v. Joseph R. Dockery III. CCA 38624. 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 issues:

I. WHETHER THE MILITARY JUDGE ERRED BY GRANTING, OVER DEFENSE OBJECTION, THE GOVERNMENT’S CHALLENGE FOR CAUSE AGAINST MSGT LW.

II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FINDING THAT THE MILITARY JUDGE DID NOT ERR, AND BY CONCLUDING THAT EVEN IF THE MILITARY JUDGE DID ERR THERE WAS NO PREJUDICE, CONTRARY TO THIS COURT’S PRECEDENT IN UNITED STATES v. PETERS, 74 M.J. 31 (C.A.A.F. 2015), UNITED STATES v. WOODS, 74 M.J. 238 (C.A.A.F. 2015),UNITED STATES V. NASH, 71 M.J. 83 (C.A.A.F. 2012), UNITED STATES v. CLAY, 64 M.J. 274 (C.A.A.F. 2007), AND UNITED STATES v. DALE, 42 M.J. 384 (C.A.A.F. 1995).

Briefs will be filed under Rule 25.

The Air Force CCA’s opinion in Dockery is available here.

No. 16-0369/AR. U.S. v. Arturo A. Tafoya. CCA 20140798. 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 personally asserted by appellant:

WHETHER THE MILITARY JUDGE UNCONSTITUTIONALLY APPLIED MRE 413 BY DETERMINING THAT A FACTFINDER COULD FIND BY A PREPONDERANCE OF THE EVIDENCE THAT APPELLANT COMMITTED EACH OF THE PRIOR ACTS ALLEGED IN THE THREE SPECIFICATIONS.

Briefs will be filed under Rule 25.

No opinion is available on the Army CCA’s website.

The grants in Wilson and Tafoya are the fourth and fifth cases with Grostefon issues granted this term. The first three are United States v. Caldwell, No. 16-0091/AR (CAAFlog case page), United States v. Nieto, No. 16-0301/AR (discussed here), and United States v. Sewell, No. 16-0360/AR (discussed here).

Additionally, CAAF summary reversed the decision of the Army CCA and remanded for additional proceedings in a case involving a claim of ineffective assistance of counsel also asserted personally by the appellant:

No. 16-0433/AR. U.S. v. James E. Hopkins. CCA 20140913. 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 personally asserted issue:

WHETHER APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL.

The decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for further appellate inquiry of the granted issue. The Court of Criminal Appeals will obtain affidavits from civilian and military trial defense counsel that respond to Appellant’s allegation of ineffective assistance of counsel. Under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2012), the Court of Criminal Appeals shall review the ineffective assistance of counsel issue in light of the affidavits and any other relevant matters. See United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997). If the court determines that a factfinding hearing is necessary, that court shall order a hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). Once the necessary information is obtained, the court will complete its Article 66(c), UCMJ, review. Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2012), shall apply.

Hopkins is the sixth grant of the term of a Grostefon issue. All six are army cases.

As the Military Justice Act of 2015 works its way through Congress, a Legal Memorandum from the Heritage Foundation considers the proposed changes in the context of history, contemporary practice, and the press to modernize:

Paul Larkin and Charles “Cully” Stimson, The 2015 Report of the Military Justice Review Group: Reasonable Next Steps in the Ongoing Professionalization of the Military Justice System