CAAF decided the Marine Corps case of EV v. United States & Martinez, __ M.J. __, No. 16-0398/MC (CAAFlog case page) (link to slip op.), on Monday, June 21, 2016. In a short opinion the court finds no jurisdiction to entertain a writ-appeal by an alleged victim who sought to reverse a military judge’s order for disclosure of portions of her mental health records. As a result, CAAF dismisses the petition.

Judge Stucky writes for a unanimous court.

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CAAF decided the Marine Corps of United States v. Martin, __ M.J. __, No. 15-0754/MC (CAAFlog case page) (link to slip op.), on Friday, June 17, 2016. With a majority of the court finding that defense counsel invited the erroneous admission of human lie detector testimony, CAAF affirms the appellant’s conviction of wrongful sexual contact and the decision of the Navy-Marine Corps CCA. However, two judges dissent with a strongly-worded opinion.

Judge Ohlson writes for the court, joined by Judge Ryan and Senior Judge Cox. Judge Stucky dissents, joined by Chief Judge Erdmann.

Sergeant Martin was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer and enlisted members, of one specification of wrongful sexual contact in violation of Article 120(m) (2006). The members sentenced him to reduction to E-1 and a bad-conduct discharge.

The conviction was based on Martin’s alleged sexual touching of a sleeping female subordinate (identified by the initials CRI) who was also the wife of another Marine. At trial Martin’s defense focused on attacking the credibility of the alleged victim – the chief prosecution witness – asserting that her allegation was fabricated. But the prosecution also called the alleged victim’s husband to testify, as he was sleeping next to his wife at the time of the alleged assault, and the husband testified on direct examination about how his wife’s demeanor changed after the night in question. Then, both the prosecution and the defense asked the husband to opine about the truth of his wife’s allegation against Martin, and both sides argued the husband’s opinion about the truthfulness of his wife’s allegation in closing argument.

The Navy-Marine Corps CCA found that the husband’s opinion constituted improper human lie detector testimony, which is “an opinion as to whether [a] person was truthful in making a specific statement regarding a fact at issue in the case.” United States v. Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014) (CAAFlog case page) (citation omitted). However, the CCA found that the admission of that improper testimony was harmless and affirmed the conviction. CAAF then granted review of a specified issue questioning the CCA’s harmlessness determination:

Specified issue: Whether the Court of Criminal Appeals erred in holding that the human lie detector testimony offered by the alleged victim’s husband was not materially prejudicial.

The Judge Advocate General of the Navy then certified a second issue challenging the underlying finding of error on the basis that it was invited by the defense:

Certified issue: Did trial defense counsel invite error when he opened the door to human lie detector testimony during the cross-examination of the victim’s husband?

Writing for the majority, Judge Ohlson finds that the error was invited by the defense in cross-examination after the prosecution called the husband for a proper purpose, answering the certified issue in the affirmative and avoiding the granted issue. Writing for the dissenters, however, Judge Stucky asserts that “the scales of justice were tipped by grossly improper testimony from the victim’s husband explaining why he believed that his wife was ‘telling the truth.'” Diss. op. at 1.

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The Washington Post reports here that:

Marine Maj. Mark Thompson — who has long ­insisted that he was falsely accused of having sex with two U.S. Naval Academy students — will face a court-martial on allegations that he lied repeatedly in an effort to prove his innocence.

Our prior coverage of the case is available here.

Here is a link to an ABA Standing Committee on Law and National Security announcement about a timely topic in light of the growing dispute between the US and China over freedom of navigation in the South China Sea, see eg here (Reuters).  From the program announcement:

WASHINGTON, June 21, 2016 — The American Bar Association Standing Committee on Law and National Security will host a breakfast briefing featuring Vice Admiral James W. Crawford III, Judge Advocate General of the Navy, from 8 to 9 a.m. ET, Tuesday, June 28, at the University Club in Washington, D.C. . . . Vice Admiral Crawford will discuss China’s military buildup and other security threats to the unimpeded passage on the high seas for trade, fishing and oil exploration. 

In an unpublished, per curiam opinion in United States v. Castillejo, No. 20130507 (A. Ct. Crim. App. Jun. 20, 2016) (link to slip op.), a three-judge panel of the Army CCA reverses the appellant’s convictions of sexual assault and abusive sexual contact because:

During appellant’s trial the government played certain portions of the appellant’s interview with a U.S. Army Criminal Investigation Command (CID) Special Agent (SA). These excerpts were played for the panel without ever being admitted into evidence.

Slip op. at 2.

The defense did not object, but the CCA finds plain and obvious error, and prejudice:

Clearly the members were expected to consider the recording of the accused’s statement as evidence, and the only reason the members did not have access to the video during deliberations was due to technical insufficiencies in the government’s software. The substance of the video was likely highly prejudicial to the outcome of the trial. While it is not clear precisely what portions of the DVD were played before the panel, it is evident from the record that significant portions of the appellant’s interview with CID were played. This video was also referenced throughout the entire trial, and trial counsel referred to it as evidence for the panel to consider in its deliberations. Furthermore, despite acknowledging that the video statement was published to the panel but never admitted into evidence, the military judge gave no curative instruction to the panel. Accordingly, we cannot be reasonably confident that the accused was convicted on the basis of the evidence alone.

Slip op. at 4.

The CCA authorizes a rehearing.

This week at SCOTUS: The cert. petition in Sullivan was distributed for conference on September 26. I’m not aware of any other 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 term’s cases are available on our 2015 Term of Court page.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on July 12, 2016.

This week at the AFCCA: I’m unable to access the Air Force CCA’s website.

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 will hear oral argument in one case this week, on Tuesday, June 21, 2016, at 10 a.m.:

United States v. Ellis

Case summary: A panel of members with enlisted representation sitting as general court-martial convicted the appellant, contrary to his pleas, of two specifications of rape, two specifications of sexual assault, three specifications of abusive sexual contact, and three specifications of assault consummated by a battery, in violation of Articles 120 and 128, UCMJ, 10 U.S.C. §§ 920, 928 (2012). The members sentenced appellant to two years’ confinement, reduction to pay grade E-1, and a dishonorable discharge. The convening authority approved the sentence as adjudged and, except for the punitive discharge, ordered it executed. The issue to be argued before this Court is as follows:

Issue: WHETHER THE MILITARY JUDGE ERRED IN DENYING THE APPELLANT HIS RIGHT TO CONFRONT HIS ACCUSERS ABOUT VICTIM/VICTIM ADVOCATE DISCUSSIONS PURSUANT TO THE SIXTH AMENDMENT, U.S. CONST., M.R.E. 608(C) AND M.R.E. 514(D)(3).

The websites of CAAF and the AFCCA (which are hosted on the same servers) are currently inaccessible to the public. However, users on the military networks may still have access.

Update: Yesterday the Air Force announced that it recovered the data (link).

According to this report:

The U.S. Air Force has lost records concerning 100,000 investigations into everything from workplace disputes to fraud.

A database that hosts files from the Air Force’s inspector general and legislative liaison divisions became corrupted last month, destroying data created between 2004 and now, service officials said. Neither the Air Force nor Lockheed Martin, the defense firm that runs the database, could say why it became corrupted or whether they’ll be able to recover the information.

The same report notes, however, that the investigations involving sex issues are safe:

Air Force officials originally said information on sexual assaults might had been lost in the crash. After the article was published, they said that while sexual assault and harassment claims might have been part of the files lost, those types of investigations are backed up elsewhere. The inspector general does not investigate cases solely involving sexual assault. However, sexual assault or harassment might be tangentially part of an inspector general investigation, a service spokeswoman said.

In a Federal Register notice available here, the Joint Service Committee on Military Justice (JSC) updates the non-binding discussion sections and appendices to the Manual for Courts-Martial to address the recent executive order amending the Manual itself. The notice is another iteration of the positive trend (noted and discussed in detail here) of the JSC publishing these non-binding materials independent of an executive order.

I discussed the recent executive order in this post, where I noted that it made five changes to the Rules for Courts-Martial and the Military Rules of Evidence that are very friendly for prosecutors. The new supplementary materials offer the following commentary on these prosecution-friendly changes:

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CAAF granted review and ordered briefing in two new cases last week:

No. 16-0423/AR. U.S. v. Joseph R. Haverty. CCA 20130559. 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 specified by the Court

WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR WHEN HE FAILED TO INSTRUCT THE PANEL ON THE MENS REA REQUIRED FOR AN ARTICLE 92, UCMJ, VIOLATION OF ARMY REGULATION 600-20, WHICH PROHIBITS REQUIRING THE CONSUMPTION OF EXCESSIVE AMOUNTS OF ALCOHOL AS AN INITIATION RITE OF PASSAGE.

Briefs will be filed under Rule 25.

The Army CCA’s opinion in Haverty is available here. The granted issue (specified by the court) is similar to the issue in United States v. Gifford, 75 M.J. 140 (C.A.A.F. Mar. 8, 2016) (CAAFlog case page).

No. 16-0424/MC. U.S. v. Mark J. Rosario. CCA 201500251. 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:

WHETHER THE LOWER COURT ERRED IN CONDUCTING ITS ARTICLE 66(c), UCMJ, REVIEW BY FINDING AS FACT ALLEGATIONS THAT SUPPORTED CHARGES OF WHICH APPELLANT WAS ACQUITTED TO AFFIRM THE FINDINGS AND SENTENCE.

Briefs will be filed under Rule 25.

The NMCCA’s opinion in Rosario is available here. The case involves a conviction of sexual harassment but acquittals of related sexual contact and assault offenses. Affirming the harassment conviction, the CCA noted that “when the same evidence is offered in support of two separately charged offenses, as the physical encounters were here, ‘an acquittal on one [may] not be pleaded as res judicata of the other.'” Slip op. at 4 (quoting Dunn v. United States, 284 U.S. 390, 393 (1932)) (marks in original).

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 will hear oral argument in one case this week, on Tuesday, June 14, 2016, at 10 a.m.:

United States v. Bonilla, No. 20131084

Issues:
I. Whether the military judge erred by allowing a damaging hearsay statement into evidence after he already ruled the specific statement inadmissible.
II. Whether the military judge abused his discretion in prohibiting the defense from completing their closing argument.

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 next scheduled oral argument at the Navy-Marine Corps CCA is on June 21, 2016.

Here (subscription req’d) is a link to Marcia Coyle’s piece in the National Law Journal Supreme Court Brief discussing the Akbar cert. petition and amicus brief from NIMJ, featuring quotes from NIMJ’s Prof. Stephen Vladeck.  From the portion visible outside the firewall:

In the past eight years, the Obama administration has been no stranger to charges it has violated separation of powers or exceeded its statutory authority. But a new charge comes from an unusual source—the military justice system—in a U.S. Supreme Court petition that has the potential to dismantle the military’s capital punishment scheme.

Our prior coverage of the cert. petition is here and here.  H/t JB/SV

CAAF decided the Army case of United States v. Evans, __ M.J. __, No. 16-0019/AR (CAAFlog case page) (link to slip op.), on Monday, June 6, 2016. Resolving an inconsistency in its own precedent regarding the appropriate test for whether a violation of the Article 31(b) statutory right to remain silent is harmless in a particular case, CAAF explains that when only the statutory provision (and not also the Fifth Amendment right against self-incrimination) is violated then the violation is tested using the four-part test set forth in United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F. 1999). Finding that only Article 31(b) was violated in this case, CAAF affirms the decision of the Army CCA.

Judge Ohlson writes for a unanimous court. Notably, this is the first opinion of the court to include the recently-confirmed Judge Sparks.

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This week at SCOTUS: The Court granted the Solicitor General an extension of time to file a response to the cert. petition in Akbar. I’m not aware of any other 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 next scheduled oral argument at the Navy-Marine Corps CCA is on June 21, 2016.

Article 120(b) and 120(d) prohibit committing a sexual act (120(b)) or a sexual contact (120(d)) upon a person who is:

asleep, unconscious, or otherwise unaware that the sexual [act/contact] is occurring

In United States v. Sager, No. 201400356 (N-M. Ct. Crim. App. Dec. 29, 2015) (link to slip op.), the appellant was convicted of violating Article 120(d) by touching another man’s penis with his hand while the other man was otherwise unaware that the contact was occurring. Specifically, while the appellant was charged with violating the statute in all three possible ways (that the other man was asleep, unconscious, or otherwise unaware when the appellant touched him; an erroneous disjunctive pleading), the members returned a finding of guilty to only a touching when the other man was otherwise unaware. That prompted the appellant to assert on appeal that the specification was unconstitutionally vague because it failed to identify how the other man was otherwise unaware, and that the finding is factually and legally insufficient because the evidence indicated that the other man was either asleep or unconscious (he testified that he awoke from a drunken slumber to the sensation of the appellant touching him).

The Navy-Marine Corps CCA rejected the appellant’s assertions by concluding that:

asleep or unconscious are examples of how an individual may be “otherwise unaware” and are not alternate theories of criminal liability.

Slip op. at 7.

On Tuesday CAAF granted review of two issues that challenge the CCA’s conclusion:

No. 16-0418/NA. U.S. v. Jeffrey D. Sager. CCA 201400356. 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 issues:

I. IN AFFIRMING THE ABUSIVE SEXUAL CONTACT CONVICTION, THE LOWER COURT RELIED ON FACTS OF WHICH THE MEMBERS ACQUITTED APPELLANT. WAS THIS ERROR?

II. ARTICLE 120(d), UCMJ, PROHIBITS SEXUAL CONTACT ON ANOTHER PERSON WHEN THAT PERSON IS “ASLEEP, UNCONSCIOUS, OR OTHERWISE UNAWARE.” DESPITE THESE SPECIFIC STATUTORY TERMS, THE LOWER COURT HELD THAT “ASLEEP” AND “UNCONSCIOUS” DO NOT ESTABLISH THEORIES OF CRIMINAL LIABILITY, BUT ONLY THE PHRASE “OTHERWISE UNAWARE” ESTABLISHES CRIMINAL LIABILITY. DID THE LOWER COURT ERR IN ITS INTERPRETATION OF ARTICLE 120(d), UCMJ?

Briefs will be filed under Rule 25.