We are on the ABA Journal’s list of the best law blogs for 2014. Thank you to all our readers and particularly those that said good things to the ABA Journal about us. The slate of contributors this time is nearly a 100% change from the last time we received the award, which makes it particularly special. I just keep riding everyone’s coat tails, Zee.

Here is the webpage where you can vote in the “Niche” category.

In a published opinion in United States v. Stellato, __ M.J. __, No. 20140453 (A. Ct. Crim. App. Nov. 17, 2014) (link to slip op.), a three-judge panel of the Army CCA grants a Government interlocutory appeal of a military judge’s order that dismissed a child sexual assault case with prejudice as a remedy for Government discovery violations. Senior Judge Tozzi writes for the panel.

The opinion contains a lengthy recitation of facts. The case “involves purported discovery violations over the course of several months. The accused, a mobilized reservist, is charged with various acts of molesting his biological daughter, MS, from 2007 through 2009. At that time, MS was between less than three years and less than five years of age.” Slip op. at 2.

I’m going to focus on the discovery issue that I think is the most significant: A dispute over the late disclosure of the existence of a “box” (and the term is used in quotes throughout the opinion) of evidence that was assembled by the alleged victim’s mother, Mrs. MS (notably, the alleged victim and her mother share the same initials – the CCA identifies the alleged victim as “MS” and the mother as “Mrs. MS”):

On approximately 9 February 2013, Mrs. MS, with the assistance of friends, compiled what witnesses described as a “box” of evidence relating to this case. Mrs. MS had compiled this evidence over several years since the allegations were first made and kept it in a large, color-coded binder several inches thick. She kept this binder in a green plastic file box, which she kept on the kitchen table in her home.

Slip op. at 3. The lead trial counsel (the prosecutor), Captain KJ, learned about the “box of evidence” in early 2013. But its existence wasn’t disclosed to the Defense until about a year later, in March 2014. By that time the trial had already been continued twice due to Defense concerns about incomplete discovery, and Captain KJ had been replaced as trial counsel (apparently because he was going to deploy, but the opinion doesn’t make this clear):

[T]he government revealed to the defense and the military judge in the R.C.M. 802 conference that there was a “box” of information in the possession of Mrs. MS that had not been provided to the government, let alone disclosed to the defense, and would not be available for trial as it was still in West Virginia [trial was to occur at Fort Bliss, Texas -zds]. This was the first time the “box” had been disclosed to the defense or the military judge, despite the defense receiving some of its contents in piecemeal discovery after being scanned by a friend of Mrs. MS and forwarded on a thumb drive to the government.

Slip op. at 8. The military judge then granted a third continuance of the trial dates, and the Defense filed “a motion to dismiss with prejudice due to prosecutorial misconduct in the form of repeated discovery violations.” Slip op. at 8. After hearing evidence and argument, the military judge granted the Defense motion, dismissing the charges with prejudice on discovery grounds. The Government appealed, and the CCA reverses, finding that “the military judge based his ruling upon an erroneous view of the law and, accordingly, abused his discretion.” Slip op. at 2.

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Last week, on November 20, CAAF granted review in another trailer to Phillips:

No. 15-0048/AR. U.S. v. Joshua R. Baker. CCA 20120839. 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:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ACCEPTING APPELLANT’S PLEA OF GUILTY TO DISOBEYING THE ORDER OF HIS COMMANDER IN VIOLATION OF ARTICLE 90, UCMJ, WHEN THE ULTIMATE OFFENSE AT ISSUE WAS THE MINOR OFFENSE OF RESTRICTION BREAKING DESCRIBED UNDER ARTICLE 134, UCMJ, AND THE RECORD DOES NOT REFLECT APPELLANT’S UNDERSTANDING THAT THE ORDER IMPOSING RESTRICTION WAS ISSUED WITH THE FULL AUTHORITY OF HIS COMMANDER’S OFFICE TO LIFT THE DUTY “ABOVE THE COMMON RUCK.”

No briefs will be filed under Rule 25.

In the Army case of United States v. Phillips, No. 14-0199/AR (CAAFlog case page), CAAF is considering the ultimate offense doctrine for the first time in almost 20 years, with the following granted issue:

Whether the military judge abused his discretion by accepting appellant’s plea of guilty to disobeying the order of his commander in violation of Article 90, UCMJ, when the ultimate offense at issue was the minor offense of breaking restriction described under Article 134, UCMJ, and the record does not reflect appellant’s understanding that the order imposing restriction was issued with the full authority of his commander’s office to lift the duty in the parlance of this court’s earlier opinion, “above the common ruck.”

CAAF heard oral argument in Phillips on October 20, so I don’t expect a decision until next year. Prior to hearing oral argument, the court granted review in three trailer cases: United States v. Nemeth, No. 14-0491/AR, (grant discussed here), United States v. Amaya, No. 14-0558/AR (grant discussed here), and United States v. Twinam, No. 14-0619/AR (grant discussed here). Since hearing oral argument, CAAF has granted review in two additional trailer cases: United States v. Hagstrom, No. 14-0650/AR (grant discussed here), and last week’s grant in Baker.

Whether the court’s continuing grants of trailer cases predicts a major decision in Phillips remains to be seen.

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court.

This week at CAAF: The next scheduled oral argument at CAAF is on December 9, 2014.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on December 10, 2014.

This week at the AFCCA: The Air Force CCA will hear oral argument in two cases this week:

Monday, November 24, 2014, at 1 p.m.:

United States v. Wright, No. 2014-10

Issue: Whether the military judge abused his discretion by abating the proceedings after the government complied with his discovery compliance order, proved beyond a reasonable doubt that no unlawful command influence or appearance thereof existed, and properly asserted the attorney-client and work product privileges

Note: The CCA will hear this argument en banc.

Tuesday, November 25, 2014, at 10 a.m.:

United States v. Henderson, No. 38379

Issues:
I. Whether the military judge abused her discretion by admitting evidence in violation of Mil.R.Evid. 807 and the Sixth Amendment, denying Appellant the right of confrontation.
II. Whether the military judge abused her discretion by admitting prosecution exhibit 7, an out-of-court statement made by MB, as a prior consistent statement, in violation of Mil.R.Evid. 801(d)(1)(b).
III. Whether the military judge denied appellant the right to cross-examine MB, in violation of the Sixth Amendment.

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 scheduled oral argument at the Navy-Marine Corps CCA is on December 3, 2014.

Every Sunday at 1 p.m. we publish This Week in Military Justice, a summary of upcoming military justice events. While putting together today’s post I saw that tomorrow the Air Force CCA, sitting en banc, will hear oral argument in an interlocutory appeal:

United States v. Wright, No. 2014-10

Issue: Whether the military judge abused his discretion by abating the proceedings after the government complied with his discovery compliance order, proved beyond a reasonable doubt that no unlawful command influence or appearance thereof existed, and properly asserted the attorney-client and work product privileges.

To the best of my knowledge (and someone please correct me if I’m wrong on this) this is a sexual assault case that was dismissed last year after Air Force Lieutenant General Craig Franklin determined that an Article 32 pretrial investigation did not reveal enough evidence to support trial by court-martial. (update: a few readers have confirmed that this is the same case). For those who don’t immediately recognize the name, Franklin was the convening authority in the Wilkerson case, our #5 Military Justice Story of 2013.

It seems we’ve covered the Wright case sporadically during the past year. In this post from February, I noted news reports about Franklin’s removal as convening authority and the convening of a second Article 32 investigation in the case. Then, in this post from March, I noted a news report that the case was referred for trial by the new convening authority. Finally, in this post from August, Mike noted the action that appears to be the subject of the Government appeal to the CCA:

The Wright court-martial drags on as Judge Kastenberg threatens to dismiss the case if he doesn’t see emails from the AF TJAG and SecAirForce. Stars and Stripes report here.  The case against Airman 1st Class Brandon T. Wright went to an Art. 32 and resulted in a recommendation of dismissal.  The CA was, unfortunately, Lt. Gen. Craig Franklin.  After he chose not to refer the case, senior AF officials became involved.  This resulted in a new Art. 32 hearing (now at JB Andrews) and a new CA, Maj. Gen. Sharon K. G. Dunbar, deciding to refer the case.  Defense counsel want emails between senior officials to determine if there was UCI.  Judge Kastenberg has agreed, but the Air Force is refusing to produce them, even for an in camera review by the judge.  Prior coverage here.

Unfortunately, that’s about all the detail I can find about the case that will be before the full AFCCA tomorrow (and my conclusion that it’s the same case is really only an educated guess). Considering the visibility of this case, the politically charged environment for sexual assault prosecutions at courts-martial, and the overriding need to avoid even the appearance of unlawful command influence, I’m saddened that we don’t have more information about this case.

However, I will note that the Government’s apparent refusal to produce correspondence for an in camera review reminds me of a recent case, also from the Air Force, where a similar attitude led to a dismissal with prejudice. In a published opinion issued last month in United States v. Bowser, __ M.J. __, Misc. Dkt. No. 2014-08 (A.F. Ct. Crim. App. Oct 3, 2014) (discussed here), the Air Force CCA affirmed the judge’s ruling that dismissed with prejudice charges of rape, forcible sodomy, and assault, after the trial counsel refused to obey an order for an in camera review of the prosecution team’s witness interview notes.

Whether the Air Force seeks to use Wright to re-litigate the issues it lost in Bowser remains to be seen.

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

United States v. Newton, No. 14-0415/AR (CAAFlog case page): Oral argument audio.

United States v. Jones, No. 14-0057/AF (CAAFlog case page): Oral argument audio.

The two-part audio of yesterday’s oral argument in United States v. Akbar, No. 13-7001/AR (CAAFlog case page), is available here: Part I, Part II.

Here is a link to Stars & Stripes article on the motions hearing in the court-martial of Air Force Staff Sergent Sean Oliver.  Oliver is accused of premeditated murder in the death of PO2 Dmitri Chepusov, a reporter with the  rmed Forces Network reporter.  Oliver is accused of “beating and strangling Chepusov at the house of another AFN airman in December 2013. Chepusov’s body was found in the passenger seat of Oliver’s car Dec. 14 after German police pulled Oliver over for driving erratically in Kaiserslautern.”  Military Judge Colonel Donald Eller denied a defense motion to suppress Oliver’s statements, among other rulings.  Prior coverage here and here.

Colorado Springs Gazette has this story on the court-martial proceedings at Fort Carson int he case of Sgt. Montrell Mayo, who is acccused of killing his girlfriend, Cpl. Kimberly Walker in a Colorado Springs hotel room after a Valentine’s Day rendevous went wrong.   It doesn;t appear from the latest reports that the death sentence is available inthis case.

Below the jump is a report from observer  Eric Carpenter, Professor of Law at Florida International University, on the commission hearings in the case of Al-Rahim al-Nashiri on November 5 and 6.

Other observer reports can be found in our Military Commissions category.

In a related development, this week’s scheduled oral argument before the Court of Military Commissions Review in al-Nashiri (discussed in TWIMJ) was postponed by order of the D.C. Circuit, which granted a stay in the case. Wells Bennett has the details in this post at Lawfare blog.  Thanks to Zee for helping draft this post while I had technical diffculties.

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This week at SCOTUS: The Court denied certiorari in Wickware v. United States, No. 14-6677 last Monday. I’m not aware of any other military justice developments at the Supreme Court, where I’m now tracking no cases.

This week at CAAF: CAAF will hear oral argument in three cases this week:

On Tuesday, November 18, 2014, CAAF will hear oral argument in the capital case of United States v. Akbar, No. 13-7001/AR (CAAFlog case page):

Issues to be argued:
I. Whether the Appellant was denied his right to the effective assistance of counsel, as guaranteed by the Sixth Amendment to the U.S. Constitution, at every critical stage of his court-martial.
II. Whether this Court should order a post-trial evidentiary hearing to resolve disputed factual issues relevant to Appellant’s numerous collateral claims unless the Court finds in his favor on another dispositive ground.
III. Whether the prosecution’s victim impact presentation and argument, and counsel’s failure to object, violated Appellant’s Fifth, Sixth, and Eighth Amendment rights.
IV. Whether the military judge denied Appellant a fair trial by failing to sua sponte dismiss fourteen of the fifteen panel members for cause based on actual and implied bias manifested by relationships of the members, a predisposition to adjudge death, an inelastic opinion against considering mitigating evidence on sentencing, visceral reactions to the charged acts, preconceived notions of guilt, and detailed knowledge of uncharged misconduct that had been excluded.
V. Whether the analysis of the Army Court of Criminal Appeals of Appellant’s case was flawed because of its misapplication of the standards applicable to federal and state capital defense counsel and that court’s determination that counsel were “well-qualified.”

Case Links:
CAAFlog case page
ACCA opinion
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

On Wednesday, November 19, 2014, CAAF will hear oral argument in two cases:

United States v. Newton, No. 14-0415/AR (CAAFlog case page)

Issue: Whether the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250 (a) (2006), applied to Appellant as a result of either the Attorney General’s 2007 interim rule or his 2008 guidelines. See, e.g., United States v. Lott, 750 F.3d 214 (2d Cir. 2014), 2014 WL 1522796; United States v. Reynolds, 710 F.3d 498 (3d Cir. 2013.)

Case Links:
ACCA opinion
Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview

United States v. Jones, No. 14-0057/AF (CAAFlog case page)

Issue: Whether the de facto officer doctrine conferred validity upon Judge Soybel’s participation in the Air Force Court of Criminal Appeals’ decision in Appellant’s case. See Ryder v. United States, 515 U.S. 177, 182-84 (1995); Nguyen v. United States, 539 U.S. 69, 72-73 (2003); United States v. American-Foreign S.S. Corp., 363 U.S. 685 (1960); Ayshire Collieries Corp. v. United States, 331 U.S. 132 (1947); Norton v. Shelby County, 118 U.S. 425, 446 (1986); United States v. Janssen, 73 M.J. 221 (C.A.A.F. 2014); United States v. Elliott, 15 M.J. 347 (C.M.A. 1983).

Case Links:
AFCCA opinion
AFCCA opinion on reconsideration
Blog post: Here come the trailers
Blog post: CAAF to re-examine the Soybel appointment
Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview

This week at the ACCA: The next scheduled oral argument at the Army CCA is on December 10, 2014.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on November 24, 2014.

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 Thursday, November 20, 2014:

United States v. Owens

Case summary:
A panel of members, sitting as a general court-martial,  convicted the appellant, contrary to his pleas, of violating a lawful general order, abusive sexual contact, and conduct unbecoming an officer and a gentleman, in violation of Articles 92, 120, and 133, Uniform Code of Military Justice. The members sentenced the appellant to a dismissal. The convening authority approved the sentence as adjudged.

Issues:
I. The appellant was denied the right to discovery under Article 46, UCMJ, when the government failed to produce evidence of SD’s learning disability in response to a general request for evidence impacting SD’s credibility. The error was not cured by the military judge’s later conclusion that the evidence was not relevant after she had articulated the relevance and the defense sought to use the evidence to attack SD’s credibility.
II. Appellant was denied the right under the Sixth Amendment to confront his accuser when the military judge first concluded that evidence related to SD’s learning disability was relevant, permitted the Government to question her about it at length, then denied the Defense the opportunity to cross-examine her on it and instructed the members to disregard it. Evidence of SD’s learning disability, or lack thereof, was relevant to her crediblity.
III. Appellant was denied a meaningful opportunity for clemency when the military judge emailed the members telling them not to communicate with the defense counsel and subsequently issued an order having a “chilling effect” on the likelihood that they would submit a clemency recommendation; and when the staff judge advocate withheld from the convening authority at least one and possibly more clemency recommendations he had received from the sentencing authority.

CAAF will hear oral argument in the Air Force case of United States v. Jones, No. 14-0057/AF (CAAFlog case page) on Wednesday, November 19, 2014. In the wake of last term’s blockbuster decision in United States v. Janssen, 73 M.J. 221 (C.A.A.F. Apr. 15, 2014) (CAAFlog case page), CAAF will revisit the impact of the appointment of one Mr. Soybel (a civilian litigation attorney employed by the Air Force who is also a retired Air Force judge advocate) to the Air Force Court of Criminal Appeals. In Janssen, CAAF found Mr. Soybel’s appointment to be invalid after concluding that Congress did not give the Secretary of Defense or the Judge Advocate General the authority to appoint a civilian as an appellate military judge.

Writing for the court in Janssen, Judge Stucky considered the possibility of saving the CCA’s action in the case by application of the de facto officer doctrine. That doctrine “confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient.” Ryder v. United States, 515 U.S. 177, 180 (1995) (citing Norton v. Shelby County, 118 U.S. 425, 440 (1886)). But under the facts of Janssen, where the appellant challenged Judge Soybel’s appointment as soon as he learned of it, CAAF declined to apply the doctrine, noting that the Supreme Court also declined to apply the doctrine in Ryder because it “would create a disincentive to raise Appointments Clause challenges with respect to questionable judicial appointments.” Janssen, slip op. at 13-14 (quoting Ryder, 515 U.S. at 183).

However, in Jones the appellant lodged practically no objections. After Second Lieutenant Jones was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of drunken operation of a motor vehicle, assault consummated by a battery, and conduct unbecoming, in violation of Articles 111, 128, and 133, and was sentenced to confinement for six months, total forfeitures, and a dismissal, his case was docketed at the Air Force CCA. Mr. Soybel was then appointed to the CCA by the Judge Advocate General of the Air Force, and Mr. Soybel was part of a three-judge panel of the CCA that affirmed the findings and sentence in Jones. But the CCA reconsidered the case after the Secretary of Defense made a second appointment of Mr. Soybel to the court. Mr. Soybel also participated in the reconsideration, and again the CCA affirmed the findings and sentence. Appellant asserted a number of errors during the CCA’s reviews, but he did not challenge the legality of Mr. Soybel’s appointment to the court.

Appellant eventually raised the issue of Mr. Soybel’s appointment – for the first time – at CAAF. CAAF granted review of Jones as a trailer case to Janssen, and then CAAF decided Janssen. Yet rather than remand Jones for a new review consistent with Janssen, CAAF did something very different. On June 27, 2014, (over two months after deciding Janssen) CAAF issued the following order:

No. 14-0057/AF. U.S. v. William R. JONES. CCA 38028. Upon further consideration of the granted issue, 73 M.J. 138 (C.A.A.F. Dec. 23, 2013), it is ordered that said petition is hereby granted on the following issue:

WHETHER THE DE FACTO OFFICER DOCTRINE CONFERRED VALIDITY UPON JUDGE SOYBEL’S PARTICIPATION IN THE AIR FORCE COURT OF CRIMINAL APPEALS’ DECISION IN APPELLANT’S CASE.  SEE RYDER v. UNITED STATES, 515 U.S. 177, 182-84 (1995); NGUYEN v. UNITED STATES, 539 U.S. 69, 72-73 (2003); UNITED STATES v. AMERICAN-FOREIGN S.S. CORP., 363 U.S. 685 (1960); AYSHIRE COLLIERIES CORP. v. UNITED STATES, 331 U.S. 132 (1947); NORTON v. SHELBY COUNTY, 118 U.S. 425, 446 (1886); UNITED STATES v. JANSSEN, 73 M.J. 221 (C.A.A.F. 2014); UNITED STATES v. ELLIOTT, 15 M.J. 347 (C.M.A. 1983).

Briefs will be filed under Rule 25.

In plain English, CAAF is considering whether it should affirm the Air Force court’s decision in Jones despite the fact that Mr. Soybel improperly participated in that decision.

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That’s the title of an immensely valuable article authored by Army Major Takashi Kagawa and published in the October 2014 edition of The Army Lawyer. The article is available here.

Major Kagawa provides a fairly comprehensive overview of the immigration laws and how they are enforced, an analysis of the ways these laws can affect service members, and guidance for prosecutors and defense counsel. Additionally, the article includes a number of valuable appendices, one of which (Appendix G) includes a chart of (what looks to be) every offense listed in the MCM along with Major Kagawa’s analysis of the associated immigration consequences.

I think the article is essential reading for any military justice practitioner.

CAAF will hear oral argument in the Army case of United States v. Newton, No. 14-0415/AR (CAAFlog case page) on Wednesday, November 19, 2014. The case presents CAAF with a rather complex interpretative issue:

Whether the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250 (a) (2006), applied to Appellant as a result of either the Attorney General’s 2007 interim rule or his 2008 guidelines. See, e.g., United States v. Lott, 750 F.3d 214 (2d Cir. 2014), 2014 WL 1522796; United States v. Reynolds, 710 F.3d 498 (3d Cir. 2013.)

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of rape of a child, indecent acts, wrongfully sending an indecent picture of himself to his minor daughter, and knowingly failing to register as required by the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2052(a), in violation of Articles 120 and 134. He was sentenced to confinement for 30 years, total forfeitures, and a dishonorable discharge. The convening authority reduced the term of confinement by one year.

Appellant joined the Army in 1998. But in 1995 Appellant was convicted of rape of a child. App. Br. at 6. That conviction is unrelated to his court-martial convictions, except that his conviction for failure to register as required by SORNA is based on his 1995 conviction. Appellant “did not register as a sex offender in Texas between October 1, 2009 and July 29, 2010.” App. Br. at 6. The issue before CAAF questions whether SORNA actually applied to Appellant at that time.

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CAAF will hear oral argument in the capital case of United States v. Akbar, No. 13-7001/AR (CAAFlog case page), on Tuesday, November 18, 2014. The court is conducting mandatory review of the case pursuant to Article 67(a)(1) because the appellant was sentenced to death after he was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of two specifications of premeditated murder and three specification of attempted premeditated murder, in violation of Articles 118 and 80.

Appellant attacked fellow soldiers in Kuwait in 2003, killing two and wounding 14 others, leading to his court-martial and death sentence in 2005. The Army CCA affirmed the death sentence in 2012 (discussed here). Notably, Akbar is one of only six military death row inmates. The whole list (in the order sentence was adjudged) is: Gray, Loving, Akbar, Witt, Hennis, and Hasan.

Akbar’s brief to CAAF raises 59 assignments of error, but the court’s website identifies only five as set for oral argument next week:

(1) Whether the Appellant was denied his right to the effective assistance of counsel, as guaranteed by the Sixth Amendment to the U.S. Constitution, at every critical stage of his court-martial;

(2) Whether this Court should order a post-trial evidentiary hearing to resolve disputed factual issues relevant to Appellant’s numerous collateral claims unless the Court finds in his favor on another dispositive ground;

(3) Whether the prosecution’s victim impact presentation and argument, and counsel’s failure to object, violated Appellant’s Fifth, Sixth, and Eighth Amendment rights;

(4) Whether the military judge denied Appellant a fair trial by failing to sua sponte dismiss fourteen of the fifteen panel members for cause based on actual and implied bias manifested by relationships of the members, a predisposition to adjudge death, an inelastic opinion against considering mitigating evidence on sentencing, visceral reactions to the charged acts, preconceived notions of guilt, and detailed knowledge of uncharged misconduct that had been excluded; and

(5) Whether the analysis of the Army Court of Criminal Appeals of Appellant’s case was flawed because of its misapplication of the standards applicable to federal and state capital defense counsel and that court’s determination that counsel were “well-qualified.”

CAAF granted each side an hour to present oral argument (typically each side receives just 20 minutes).

Appellant’s brief is 328 pages, the Government’s answer is 350 pages, and Appellant’s reply brief is 58 pages. Because of the number of issues in this case, I’m not going to engage in my normal analysis of the briefs in advance of the oral argument. However, I do note that the fifth issue to be argued has echoes of Judge Mitchell’s dubitante opinion in the Air Force CCA’s approval of the death sentence in United States v. Witt, No. 36785, __ M.J. __ (A.F. Ct. Crim. App. Jun. 30, 2014) (discussed here).

I’ll also note two informative posts about the military death penalty system from our archives (both written by Dwight Sullivan). The first is from 2007: Military death penalty system by the numbers. The second is from 2009: Military death penalty stats: building the pyramid.

Case Links:
CAAFlog case page
ACCA opinion
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

In a pair of cases decided in 2012, the Supreme Court held that the Sixth Amendment guarantees criminal defendants a right to effective assistance of counsel during plea negotiations. In Missouri v. Frye, the Court held that “as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.” 132 S. Ct. 1399, 1408 (2012). In Lafler v. Cooper, the Court held that when a defendant rejects a plea deal on the advice of counsel, that rejection will not be prejudicial unless there is a showing of “a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed.” 132 S. Ct. 1376, 1385 (2012).

In a recent published opinion in United States v. Valmont, __ M.J. __, No. 20110644 (A. Ct. Crim. App. Oct. 22, 2014) (link to slip op.), the Army CCA considers a claim of ineffective assistance of counsel (IAC) in the plea negotiation process. The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of premeditated murder in violation of Article 118(a). He was sentenced to confinement for life without the possibility of parole, reduction to E-1, total forfeitures, and a dishonorable discharge. The convening authority approved the sentence as adjudged.

The IAC claim is primarily an assertion that the appellant’s five defense counsel (two military, three civilians) failed to communicate to him plea offers from the Government that would have limited his confinement to a term of years. The court’s recitation of facts is four pages of dense he-said / they-said claims, but it’s clear that the appellant rejected an initial offer that would have limited his confinement to 50 years, that he wanted (but never formally proposed) a deal that limited his confinement to no more than 30 or 40 years, and that there were ongoing informal discussions by email between the appellant’s civilian defense counsel and the trial counsel.

The CCA rejects the IAC claim. This rejection is mostly based on the informality of the discussions between the trial counsel and the defense, noting that Frye only requires communication of formal plea deals.

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