This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court, where I’m tracking six cases:
This week at CAAF: CAAF has completed its oral argument calendar for the term. A detailed list of this term’s cases is available on our October 2016 Term Page.
This week at the ACCA: The next scheduled oral argument at the Army CCA is on August 8, 2017.
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 will hear oral argument in one case this week, on Thursday, July 20, 2017, at 10 a.m.:
United States v. Motsenbocker, No. 201600285
Case Summary: A panel of officer and enlisted members sitting as a general court-martial convicted the appellant, contrary to his pleas, of two specifications of abusive sexual conduct and one specification of sexual assault, each in violation of Article 120, UCMJ, 10 U.S.C. § 920 (2012). The members sentenced the appellant to confinement for six months, reduction to pay grade E-1, forfeiture of all pay and allowances, and a dishonorable discharge. The convening authority approved the sentence as adjudged and ordered it executed.
I. THE GOVERNMENT IS REQUIRED TO PROVIDE FAIR NOTICE OF THE CHARGE AN ACCUSED MUST DEFEND AGAINST. HERE, THE GOVERNMENT CHARGED THE CASE AS A VIOLATION OF ARTICLE 120(B)(1)(B), UCMJ, BUT ARGUED A THEORY OF LIABILITY UNDER ARTICLE 120(B)(3)(A), UCMJ. WAS THIS A FAILURE OF FAIR NOTICE?
II. THE MILITARY JUDGE IS REQUIRED TO PROVIDE ACCURATE INSTRUCTIONS TO MEMBERS. HERE, THE MILITARY JUDGE INSTRUCTED MEMBERS ON CONSENT FOR ARTICLES 120(B)(1)(B) AND 120(D) , UCMJ, USING DEFINITIONS FOR CONSENT IN RELATION TO THE ARTICLE 120(B)(3)(A) , UCMJ, INCAPACITY ELEMENT. WAS THIS INSTRUCTIONAL ERROR BY THE MILITARY JUDGE?
III. TRIAL COUNSEL MAY NOT MAKE IMPROPER ARGUMENT TO THE MEMBERS. TRIAL COUNSEL ARGUED THE NEED TO RELY ON BYSTANDER INTERVENTION AND NAVY TRAINING ON SEXUAL ASSAULT CONTRARY TO THE MILITARY JUDGE’S PRELIMINARY INSTRUCTION. ADDITIONALLY, TRIAL COUNSEL REPEATEDLY CALLED THE APPELLANT A LIAR, BOLSTERED THE ALLEGED VICTIM’S TESTIMONY, MISCHARACTERIZED EVIDENCE, INSERTED PERSONAL OPINION IN THE ARGUMENT AND SHIFTED THE BURDEN TO DEFENSE. WAS THIS PROSECUTORIAL MISCONDUCT?
IV. TRIAL COUNSEL MAY NOT MAKE IMPROPER ARGUMENT. TRIAL COUNSEL ARGUED A THEORY OF LIABILITY THAT THE ACCUSED WAS NOT CHARGED WITH. HE DID THIS BY PROPERLY ARGUING THE VICTIM HAD CAPACITY TO CONSENT UNDER THE CHARGED OFFENSES OF ARTICLES 120(B)(1)(B) , AND 120(D), UCMJ, WHILE ALSO IMPROPERLY ARGUING THAT THE VICTIM DID NOT HAVE THE CAPACITY TO CONSENT UNDER AN UNCHARGED OFFENSE OF ARTICLE 120(B)(3)(A), UCMJ. WAS THIS PROSECUTORIAL MISCONDUCT?