Significant military justice event: A meeting of the Judicial Proceedings Panel will be held on Friday, September 19, 2014. The public session will begin at 8:45 a.m. and end at 5:00 p.m. The meeting will occur at the Holiday Inn, Glebe and Fairfax Ballrooms, 4610 N. Fairfax Drive, Arlington, Virginia 22203. Federal register notice available here.

This week at SCOTUS: The Solicitor General waived the Government’s right to respond to the cert petitions in Swiger v. United States and McMurrin v. United States. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking seven cases:

This week at CAAF: The next scheduled oral argument at CAAF is on October 7, 2014.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on September 16, 2104, at 10 a.m.

United States v. Brown, No: 20130177

Issue: Whether the military judge abused his discretion by using the term “competent decision” to define “substantially incapacitated” in the jury instruction, thereby lessening the government’s burden of proof for the element of substantial incapacitation.

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

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

This week at the NMCCA: The next schedule oral argument at the Navy-Marine Corps CCA is on October 1, 2014.

CAAF granted review and ordered briefs in three cases yesterday.

First is an Air Force case:

No. 14-0166/AF.  U.S. v. Brittany N. OLSON.  CCA S32034.  Review granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED BY DENYING THE DEFENSE’S MOTION TO SUPPRESS THE EVIDENCE SEIZED FROM APPELLANT’S HOUSE BECAUSE THE TOTALITY OF THE CIRCUMSTANCES INDICATED THAT APPELLANT’S CONSENT TO SEARCH WAS INVOLUNTARY.

The Air Force CCA’s opinion is available here. The CCA considered the granted issue and determined that Appellant voluntarily consented to the search.

Next is an Army case:

No. 14-0495/AR.  U.S. v. Matthew R. ADAMS, Jr.  CCA 20110503.  Review granted on the following issue:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN FINDING THAT THE MILITARY JUDGE DID NOT ABUSE HIS DISCRETION IN ADMITTING THE PORTION OF APPELLANT’S SWORN STATEMENT REGARDING THE [THEFT] OF COCAINE BECAUSE THE GOVERNMENT FAILED TO CORROBORATE, IN ACCORDANCE WITH MILITARY RULE OF EVIDENCE 304(g), THE ESSENTIAL FACT THAT APPELLANT TOOK COCAINE.

The Army CCA’s opinion is available here. The CCA considered the granted issue and rejected it, reasoning that “the issue is not whether the government failed to corroborate whether appellant ‘took cocaine,’ but rather whether the corroborating evidence justifies the inference as to the truth of the essential facts of the confession.” United States v. Adams, No. 20110503, slip op. at 3 (A. Ct. Crim. App. Jan. 29, 2013). The court concluded that “it is reasonable to infer the truth of the essential facts in appellant’s confession to stealing cocaine. This inference is drawn from the following facts: the victim of the cocaine theft shared a similar, yet uncommon, name to a known drug dealer in the local Fort Drum area; a weapon matching the description of the one appellant stated he used in the theft was found in his residence four days after the incident; and the named locations of the meeting place and the theft were in the local area and in close proximity to one another.” Slip op. at 5.

Last is a Marine Corps case:

No. 14-0524/MC.  U.S. v. Troy B. NORMAN.  CCA 201300152.  Review granted on the following issue:

WHETHER THE CONVICTION FOR CHILD ENDANGERMENT BY CULPABLE NEGLIGENCE IS LEGALLY INSUFFICIENT WHEN THE ONLY TESTIMONY OFFERED TO PROVE ITS SERVICE DISCREDITING NATURE WAS ADMITTED IN ERROR.

The NMCCA’s opinion is available here. Appellant was convicted of a single specification of endangering a child in violation of Article 134 charged as service discrediting conduct. Over Defense objection, a noncommissioned officer testified that “anybody who would do that would bring discredit upon themselves, but especially a Marine, because of the high opinion that we are . . . held to by the public.” United States v. Norman, No. 201300152, slip op. at 4 (N-M. Ct. Crim. App. Feb. 20, 2014) (quoting Record at 712) (omission in original). The CCA assumed error in the admission of this testimony but found it harmless, reasoning that “the members did not need the SNCO’s generic testimony to establish the terminal element; in fact, they required no testimony at all regarding this element.” Id.

Notably absent is a grant in a Navy case (Coast Guard cases are rare enough that the absence isn’t notable at this time). As I noted in Part I of my 2013 End o’ Term Stats, CAAF didn’t hear oral argument or issue an authored opinion in a single Navy case last term (and it issued summary dispositions in just three Navy cases). Moreover, there are no Navy cases on CAAF’s master docket (last term ended with 28 cases on the master docket and the three new grants takes the total to 31 – the breakdown is: 17 Air Force, 11 Army, 3 Marine Corps).

The last authored CAAF opinion in a Navy case was Chief Judge Baker’s unanimous opinion in United States v. Brown, 72 M.J. 359 (C.A.A.F. Jul. 15, 2013) (CAAFlog case page). That case was also the last time CAAF heard oral argument in a Navy case – on May 14, 2013.

In an unpublished opinion in United States v. Torres, No. 201300396 (N-M. Ct. Crim. App. Aug. 28, 2014) (link to unpub. op.), a three-judge panel of the NMCCA rejects an equal protection claim, an as-applied vagueness claim, and an assertion that the military judge erred in using “knowledge of human nature and the ways of the world” in assessing the evidence in a judge-alone trial. Slip op. at 8.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of sexual assault and adultery in violation of Articles 120 and 134. He was sentenced to confinement for two years, reduction to E-1, and a dishonorable discharge. The convictions stemmed from Appellant’s sexual encounter with the heavily-intoxicated wife of another Marine during a house party. The woman – identified as “AM” – fell asleep in a bathroom. Then:

The next thing AM remembered was waking up in the spare bedroom on the air mattress. She had no memory how she got there and was disoriented and in discomfort; she then realized that someone was having sexual intercourse with her. As she started to wake up, she realized that she was wearing only a bikini top. The tank top, shorts, and underwear that she had worn while asleep in the bathroom had been removed.2 By the time she regained her senses, AM saw the appellant, naked, lying next to her. She rolled off the air mattress, grabbed some clothes that were on top of her red suitcase, and went to look for her husband.

Slip op. at 4. AM tried to awaken her husband, who had fallen asleep on a patio table, but he fell to the floor and started bleeding. AM then called 911 and reported her husband’s injuries and that she had been raped.

Appellant was convicted of sexual assault in violation of Article 120(b)(3)(A) (2012): committing a sexual act upon a person who is incapable of consenting due to impairment by an intoxicant. At trial Appellant did not contest that he had a sexual encounter with AM, but asserted that it was consensual and that AM was capable on consenting. Slip op. at 6. On appeal he asserted that the prosecution deprived him of equal protection because he had “higher symptoms of impairment [than AM],” slip op. at 11, that the term “[i]ncapable of consenting to the sexual act due to impairment by alcohol” is unconstitutionally vague, slip op. at 13, and that the military judge improperly used his own “human experience” in place of the evidence presented at trial, slip op. at 9. The CCA rejects all three errors.

Read more »

Back in April, in this post, I discussed the NMCCA’s decision in United States v. Loiacono, No. 201200451 (N-M. Ct. Crim. App. Mar. 25, 2014), rev. denied, __ M.J. __ (C.A.A.F. Jul. 29, 2014), in which the CCA rejected the appellant’s claim  of judicial bias arising from improper questioning of a witness by the judge that led to improper testimony from the witness (requiring what the CCA called a “strong curative instruction,” slip op. at 31).

Now, in United States v. Williams, No. 20130284 (A. Ct. Crim. App. Aug. 28, 2014) (link to slip op.), a three-judge panel of the Army CCA finds plain error in a military judge’s questions to a sentencing witness. The Government repeatedly tried to elicit testimony from the witness about the effect of the appellant’s offenses on the unit. But that testimony was focused on the administrative after-effects, with observations such as:

CPT JF: Okay. Well besides the soldiers being upset that he wasn’t receiving a punishment and they had, there was even threatening against him, especially when the barracks incidents happened; that they wanted to take into his [sic] own hands because they felt justice wasn’t being served to him fast enough. When it came to — our unit was extremely busy with a lot of missions at the time. When it came — I had to bring NCOs out to escort him around to make —-

Slip op. at 9-10. The problem with this testimony is that a service member’s invocation of the right to refuse administrative punishment and require that the Government conduct a court-martial, and any associated delay, is not a matter in aggravation. Neither is the fact that others the his unit contemplated vigilantism. The Defense repeatedly objected to the questions, and the judge sustained the objections. But then the judge questioned the witness:

MJ: [CPT JF], you talked about the impact on the unit about the other soldiers observing what they felt was the slow pace of justice and wanting to take matters into their own hands. What do you base that observation on?

CPT JF: Yes, sir. I mean, rumors and hearsay had gotten to me that they were threatening beating him down.

MJ: And how was that transmitted to you?

CPT JF: Through NCO channels, like, “Hey, sir. These soldiers want to beat him up.”

Slip op. at 10. The Defense did not object to the judge’s questions.

Read more »

Audio of today’s oral argument at CAAF in United States v. Vargas, No. 14-6009/MC (CAAFlog case page) is available here.

Military Rule of Evidence 304(c) (2013) (formerly M.R.E. 304(g)) states the corroboration rule, beginning with this paragraph:

An admission or a confession of the accused may be considered as evidence against the accused on the question of guilt or innocence only if independent evidence, either direct or circumstantial, has been admitted into evidence that corroborates the essential facts admitted to justify sufficiently an inference of their truth.

M.R.E. 304(c)(1). An excellent article by Colonel J. Wesley Moore, USAF, The Corroboration Quandary: A Historical Overview of the Interpretation of MRE 304(g), 63 A.F. L. Rev. 89 (2011) (available here), provides a comprehensive analysis of this rule. And CAAF had two good occasions during the past term to weigh in on this subject, first in United States v. McPherson, 73 M.J. 393 (C.A.A.F. 2014) (CAAFlog case page), where the court rejected the defense efforts to obtain review of the AFCCA’s back-to-the-future theory of corroboration (discussed here and here), and second in United States v. McIntyre, No. 14-6005/AF, where the court summarily rejected an Air Force certification of the AFCCA’s rejection of a Government interlocutory appeal of a military judge’s ruling that suppressed a confession due to lack of corroboration (discussed here).

But I’ve long believed that the rule is worthy of a fresh analysis by our civilian court in part because confessions are the least reliable form of proof known to the law. A confession is the only form of proof that is both presumed inadmissible (when challenged, the Government has the burden to show admissibility) and requires corroboration (separate from the confession itself or another confession). Unlike eyewitness identification, circumstantial evidence, or inconsistent testimony from an alleged victim loaded with bias and prejudice, an accused cannot be convicted on his confession alone.

A recent unpublished decision by a three-judge panel of the Navy-Marine Corps CCA, in United States v. Green, No. 201300276 (N-M. Ct. Crim. App. July 31, 2014) (link to unpub. op.), might just get the corroboration rule back to CAAF. The CCA affirms the findings and sentence, that include a conviction for rape of a child and a sentence of confinement for 140 months, after concluding that the appellant’s confession was sufficiently corroborated.

Read more »

In volume 63 of the Naval Law Review, Commander Robert P. Monahan, Jr., JAGC, USN, writes A Proposal to Conform Military Rule of Evidence 305 in light of the Supreme Court’s Holdings in Maryland v. Shatzer and Berghuis v. Thompkins, 63 Naval L. Rev. 67 (2014). Commander Monahan proposes modifying MRE 305(e)(3)(A) to incorporate the 14-day break in custody requirement from Maryland v. Shatzer, 559 U.S. 98, 110 (2010); modifying MRE 305(c)(4) to require an unambiguous invocation of the right to remain silent drawn from Berghuis v. Thompkins, 560 U.S. 370, 388-389 (2010); and modifying MRE 305(e)(1) and 305(e)(2) to permit implied waiver of the right to remain silent. This is a direct link to the beginning of the article in the complete volume of the Naval Law Review, hosted on the Navy’s website. This is a link to just the article, hosted on CAAFlog.

In the July volume of The Army Lawyer (link to full volume’s table of contents and articles), there are three notable articles:

  • Major Dane B. Getz, USAR, Closing the Gap in Access to Military Health Care Records: Mandating Civilian Compliance with the Military Command Exception to the HIPAA Privacy Rule, Army Law., July 2014, at 4 (direct link to article). Major Getz’s article reveals what I think is a disturbing institutionalized lack of respect for the protected nature of medical records. For example, the article considers a hypothetical situation where a “commander needs the NCO’s (non-commissioned officer’s] PHI [protected health information] as soon as possible to determine his continued fitness for duty and assess whether he may pose a danger to himself and others.” Id. at 5. Precisely what the commander (not a medical provider) will do with that information is unclear. Further, the article discusses the outrageous practice of issuing orders to Soldiers “to sign civilian medical release forms in their favor and/or turn over copies of their civilian PHI directly to commanders,” id. at 5 n.9, and labels Soldiers who wish to preserve their medical privacy as “medically non-compliant,” id. at 7 n.34.
  • Major Brent A. Goodwin, USA, Congress Offends Eisenhower and Cicero by Annihilating Article 60, UCMJ, Army Law., July 2014, at 23 (direct link to article). Major Goodwin’s articles discusses the changes to Article 60(c) in the FY14 NDAA and joins the debate over the meaning of the clemency limitations, ultimately agreeing with (though not discussing) my conclusion that in all cases the statute allows reduction of punishments that are not confinement for more than six months or a punitive discharge. Id. at 28. See this post.
  • Captain Jeremy R. Bedford, USA, Eligibility for VA Disability Compensation and Health Care Benefits for Army National Guardsmen Discharged with an Other Than Honorable Discharge, Army Law., July 2014, at 36 (direct link to article). Captain Bedford’s article concludes: “The interpretation of VA benefits eligibility in AR 135-178 needs to be revised to clarify that an ARNG’s [Army National Guard] OTH [administrative discharge under other than honorable conditions] will not affect the disability compensation and health care benefits to which Guardsman are entitled on the basis of a previous honorable active service deployment.” Id. at 39.

In the August volume of The Army Lawyer (link to full volume’s table of contents and articles), there are three notable articles:

  • Colonel James F. Garrett, USA, Colonel Mark “Max” Maxwell, USA, Lieutenant Colonel Matthew A. Calarco, USA, and Major Franklin D. Rosenblatt, USA, Lawful Command Emphasis: Talk Offense, Not Offender; Talk Process, Not Results, Army Law., August 2014, at 4 (direct link to article). The article coins a new term: lawful command emphasis. “Lawful command emphasis is, in short, the appropriate actions commanders or staff members can take within the military justice process to ensure good order and discipline is maintained within the ranks.” Id. at 6.
  • Major Matthew E. Wright, USA, A Distinction with a Difference: Rule for Courts-Martial 304 Pretrial Restraint and Speedy Trial, Army Law., August 2014, at 22 (direct link to article). Major Wright’s article discusses “the spectrum of restraint [that] begins with no restraint and progresses through conditions on liberty, restriction, arrest, restriction tantamount to confinement, and finally, confinement. A progressively onerous array of collateral consequences linked to the severity of the restraint imposed provides strong incentives for commanders to remain as close to the beginning of this spectrum as possible.” Id. at 25.
  • Colonel James W. Herring, Jr., USA, A View from the Bench: Make the Routine, Routine (U.S. Army Legal Services Agency Trial Judiciary Note), Army Law., August 2014, at 41 (direct link to article). Colonel Harring’s article discusses issues with specifications (i.e., the specifications on the charge sheet), script (i.e., the trial guide), and suspenses (i.e., deadlines).

This week at SCOTUS: A cert petition was filed in McMurrin v. United States, No. 14-262, on August 29, 2014. I discussed the petition and the history of the case in this post. The Government’s response is due on October 6. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking seven cases:

This week at CAAF: CAAF will hear the first oral argument of the 2014 term on Tuesday, September 9, 2014, at 9:30 a.m.:

United States v. Vargas, No. 14-6009/MC (CAAFlog case page)

Issue: Whether the Navy-Marine Corps Court of Criminal Appeals erroneously interpreted Article 62, UCMJ, to allow a Government appeal of the military judge’s denial of a continuance request as well as the military judge’s order resting the Government’s case.

Case Links:
NMCCA opinion
Blog post: The NMCCA finds that Article 62 authorizes appeals of recesses
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

This week at the ACCA: The next scheduled oral argument at the Army CCA is on September 16, 2104.

This week at the AFCCA: The Air Force CCA will hear oral argument in the Article 62 appeal of United States v. Bowser, No. 2015-08, on Wednesday, September 10, 2014, at 10 a.m. The case involves dismissal of sexual assault charges due to Government discovery violations (discussed in this post).

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Wednesday, September 10, 2014, at 10 a.m.:

United States v. Riggins

Case Summary: A military judge, sitting as a general court-martial, convicted the appellant, pursuant to his pleas, of two specifications of violating a lawful general order, making a false official statement, and adultery, in violation of Articles 92, 107, and 134, UCMJ, 10 U.S.C. §§ 892, 907, 934 (2006). The appellant was convicted, contrary to his pleas, of six specifications of assault consummated by a battery, and one specification of indecent language in violation of Articles 128 and 134, UCMJ, 10 U.S.C. §§ 928 and 934 (2006). The military judge sentenced the appellant to three years confinement, reduction to pay-grade E-1, and a bad-conduct discharge. The convening authority approved the sentence as adjudged, and except for the punitive discharge, ordered the sentence executed.

Issue: Whether the military judge erred when he found that assault consummated by a battery was a lesser-included offense of abusive sexual contact and sexual assault as charged in the additional charge.

CAAF upended lesser-included offenses jurisprudence in the military justice system with its opinions in United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008) (discussed here) (finding that in Article 134, clause 1 & 2 are not LIOs of clause 3), United States v. Miller, 67 M.J. 385 (C.A.A.F. 2009) (discussed here) (finding that a simple neglect under Article 134 is not a LIO of every enumerated article), and United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010) (discussed here) (returning to the elements test for determining LIOs).

Applying those cases, CAAF determined that negligent homicide (in violation of Article 134) is not a lesser-included offense of either murder (in violation of Article 118) or involuntary manslaughter (in violation of Article 119) in a pair of cases decided on the same day: United States v. Girouard, 70 M.J. 5, 9 (C.A.A.F. 2011) (link to slip op.), and United States v. McMurrin, 70 M.J. 15, 18 (C.A.A.F. 2011) (link to slip op.). I discussed both cases in a 2011 post titled Pushing the LIO Easy Button (and noted a humorous citation in a post titled A Mobius Strip of Citation).

McMurrin involved a Sailor who, in 2008, went on a cocaine and heroin binge with a fellow sailor. The other Sailor died at the end of the night after McMurrin left him in the bushes to “sleep it off.” Among other charges, McMurrin was charged with involuntary manslaughter in violation of Article 119, but he was convicted of negligent homicide in violation of Article 134 as a lesser-included offense. Involuntary manslaughter is a homicide caused by culpable negligence, while negligent homicide requires only simple negligence. However, as an enumerated offense under Article 134, negligent homicide must also be prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces; an additional element not found in the Article 119 charge. So, applying Miller and Jones, the NMCCA set aside the finding of guilty of involuntary manslaughter in a published, en banc opinion. United States v. McMurrin, 69 M.J. 591 (N-M.Ct.Crim.App. 2010) (link to slip op.). The Judge Advocate of the Navy certified the case to CAAF, where the CCA was affirmed (link to CAAF op.).

Because McMurrin’s homicide conviction was reversed, the CCA ordered a sentence rehearing. But when the case was returned to the convening authority, charges were added, including a charge of negligent homicide under Article 134. McMurrin was then tried and convicted of the new negligent homicide charge, and sentenced for both the new and old convictions. On appeal he asserted that the convening authority’s action adding charges exceeded the scope of the mandate on remand, but the NMCCA rejected that argument in an unpublished opinion. United States v. McMurrin, No. 200900475 (N-M.Ct.Crim.App. Jun 27, 2013) (discussed here) (link to slip op.). CAAF then denied review.

On August 29 McMurrin filed a cert petition with the Supreme Court. The petition is available here.

Read more »

The DoD extended the deadline for the Military Justice Review Group to complete its work. The new deadline for the MJRG report recommending changes to the UCMJ has been extended to March 25, 2015, and the deadline for the report recommending changes to the MCM has been extended to September 21, 2015. Federal register notice available here.

A meeting of the Judicial Proceedings Panel will be held on Friday, September 19, 2014. The Public Session will begin at 8:45 a.m. and end at 5:00 p.m. The meeting will occur at the Holiday Inn, Glebe and Fairfax Ballrooms, 4610 N. Fairfax Drive, Arlington, Virginia 22203. Federal register notice available here.

The DoD published proposed rulemaking to update the Department’s FOIA program. Federal register notice available here. Public comments are due by November 3, 2014.

In United States v. Wilson, 66 M.J. 39 (C.A.A.F. 2008) (link to slip op.), a divided CAAF concluded that the defense of mistake of fact as to age does not apply to a charge of non-forcible sodomy with a child under the age of 16 in violation of Article 125 (of note, Article 125 was amended by section 1707 of the FY14 NDAA, eliminating non-forcible sodomy as an offense). But Congress has long provided a statutory defense of mistake of fact as to age in a prosecution for certain sexual offenses with a child in violation of Article 120, enacting the first such defense in Section 1113 of the National Defense Authorization Act for 1996, 110 Stat. 186, 462 (1996). Such a defense provides that a service member accused of a sexual act with a child under the age of 16 is not guilty if the accused reasonably (but wrongly) believed that the child was at least 16 and the child was in fact at least 12.

This creates the possibility that a service member who commits sexual activity with a child under the age of 16 while under the reasonable but mistaken belief that the child is over 16 may be charged with an offense under Article 120 for which there is a defense of mistake, with an offense under Article 125 for which there isn’t a defense of mistake, or with both.

It’s both charges in the ongoing Army court-martial of Private Hernandez: sexual assault of a child, sexual abuse of a child, and sodomy with a child in violation of Articles 120b (2012) and 125. The case is ongoing because the Army CCA has now issued two opinions on a Government petition for extraordinary relief, first denying the petition in an unpublished summary disposition by a three-judge panel, and then granting the petition in the form of a writ of prohibition in an en banc published opinion. United States v. Gross, Military Judge, and Hernandez, Real Party in Interest, No. 20140293 (A. Ct. Crim. App. Jun. 5, 2014) (per curiam) (Hernandez I) (link to unpub. op.), rev’d on recon. en banc, __ M.J. __, (A. Ct. Crim. App. Aug. 28, 2014) (Hernandez II) (link to slip op.).

At issue is the action of the military judge on the accused’s efforts to have the defense of mistake of fact as to age applied to the sodomy charge, despite CAAF’s opinion in Wilson.

Read more »

The new LtCol told Marine Times that he was promoted on time and that his promotion was never delayed, or was there an effort to remove him from the list.

CAAF will hear the first oral argument of the September 2014 Term in the Marine Corps case of United States v. Vargas, No. 14-6009/MC (CAAFlog case page), on Tuesday, September 9, 2014. The court will review the decision of the Navy-Marine Corps CCA that granted a Government interlocutory appeal and vacated a military judge’s rulings that denied the Prosecution an overnight recess during trial and rested its case.

Appellant is a Marine Staff Sergeant charged with a single specification of assault consummated by a battery. Trial before a special court-martial with members began on October 22, 2013, and was docketed for three days. Government counsel planned to call seven witnesses; four on the first day and three on the second day. However, the empanelment of members and the testimony of the first four witnesses went faster than anticipated, and by mid-afternoon the Government counsel was unprepared to present any more evidence until the second day.

So Government counsel requested a continuance until the following morning. The Defense opposed the continuance and the military judge denied it. Government counsel then gave notice of intent to appeal the judge’s ruling. This notice is supposed to stop the proceedings (pursuant to R.C.M. 908(b)(1)), but the military judge kept going, including resting the Government’s case and denying a Defense motion for a finding of not guilty pursuant to R.C.M. 917. The parties began to discuss instructions for the members before the military judge finally stopped the proceedings for the Government’s appeal.

That evening Government counsel changed course, sending the judge an email disclaiming any intent to appeal the denial of the continuance and asking for reconsideration of the ruling that the Government’s case was rested. The next day the military judge heard the Government’s motion for reconsideration and reaffirmed her rulings. The Government then gave a second notice of intent to appeal, and an interlocutory appeal under Article 62 followed.

A three-judge panel of the NMCCA granted that appeal, vacating the judge’s rulings, after finding that it had jurisdiction to do so under Article 62 (which authorizes Government appeals in various situations including of “an order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.” Article 62(a)(1)(B)). The CCA determined that:

By denying the trial counsel’s motion for a recess until the next morning and then sua sponte resting the Government’s case, the military judge effectively denied the Government the opportunity to present critical testimony that is substantial proof of a fact material in the proceeding.

United States v. Vargas, No. 201300426, slip op. at 9 (N-M. Ct. Crim. App. Feb. 28, 2014) (discussed here) (link to unpub. op.). The court then analyzed the circumstances (giving surprisingly little deference to the trial judge) and concluded:

In light of the circumstances of this case, we conclude that the military judge’s action in denying the Government a brief recess during trial and then sua sponte, over objection, resting the Government’s case was a clear abuse of discretion.

Slip op. at 10. In my analysis of the CCA’s opinion I discussed two potential issues: whether the CCA had jurisdiction and whether the court gave the required degree of deference to the trial judge’s rulings. A few months later Appellant sought review by CAAF, identifying these same two issues, and in July the court granted review of the jurisdictional question:

Whether the Navy-Marine Corps Court of Criminal Appeals erroneously interpreted Article 62, UCMJ, to allow a Government appeal of the military judge’s denial of a continuance request as well as the military judge’s order resting the Government’s case.

Read more »

In its recent opinion United States v. Riesbeck, No. 1374 (CGCCA 5 Aug 2014), the CGCCA finds that an appellant waived a challenge to a “stacked” panel for his general court-martial. The appellant was charged with and convicted of, among other things, a specification of rape in violation of Article 120, UCMJ. The charges stemmed from an incident in September 2010 that occurred during a port call in Puerto Vallarta, Mexico.

On appeal, the appellant raises several issues including the composition of his court-martial panel. The final panel chosen by the convening authority consisted of seven women and three men, which was actually an increase in women from the six women and four men that had been on a previous version of the convening order. Of these, five individuals had served as or were currently serving as victim advocates, and two others had assisted women who had complained of sexual assault. Two of these individuals, who were trained as victim advocates or had assisted a female sexual assault complainant, were successfully challenged for cause and eventually excused. However, the appellant’s final panel that was seated included five women who had served or were serving as victim advocates or had assisted a woman who had complained of sexual assault.

Read more »

CAAF heard oral argument in 4 cases with issues certified by one of the Judge Advocates General under the authority granted in Article 67(a)(2) (Finch, Hines, McPherson, and Wilson). But that only tells part of the story, as the court resolved another 7 certified cases by summary disposition (Arriaga, Burns, Lindgren, McDowell, McIntyre, Seton, and Sickels). In total the court decided 11 cases with certified issues this term.

Of those 11 cases, 9 (82%) were from the Air Force. That’s in part due to the Air Force certification binge earlier this spring that prompted me to write about the appearance of bias in the certification of cases by the Judge Advocate General of the Air Force. The other two cases were from the Army.

The Government won in only 2 out of the 11 certifications (18%): Hines (an Army case where the court unanimously sided with the Government) and Finch (an Air Force case where the court was sharply divided). Both of those cases were heard at oral argument. Notably, Finch involved a cross-certification; the JAG certified an issue after CAAF granted review of the CCA’s decision.

The court specified issues for oral argument in two cases (Moon and Moss), both from the Army. The specified issues were dispositive in both cases.

Representation by each court of criminal appeals at CAAF was skewed towards the Army and Air Force courts (since, as noted in Part I, CAAF didn’t hear oral argument in any Navy cases this term). Of the 32 cases heard at oral argument:

  • 15 were from the Air Force CCA.
  • 14 were from the Army CCA.
  • 2 were from the Navy-Marine Corps CCA.
  • 1 was from the Coast Guard CCA.

Of these:

  • The Air Force CCA was reversed in 6 out of 15 cases (40%).
  • The Army CCA was reversed in 6 out of 14 cases (43%).
  • The Navy-Marine Corps CCA was reversed in 0 out of 2 cases.
  • The Coast Guard CCA was reversed in 0 out of 1 case.