CAAF decided the Army case of United States v. Jessie, __ M.J. __, No. 19-0192/AR (CAAFlog case page) (link to slip op.), on April 6, 2020. Bitterly divided, a bare majority of the court holds that – with only a few exceptions not applicable to this case – Article 66 does not allow a Court of Criminal Appeals to consider matters outside the record when reviewing the appropriateness of the sentence. The dissenters not only disagree with that holding, but they also see it as an ominous pronouncement with no limiting principle.

Judge Maggs writes for the court, joined by Chief Judge Stucky and Judge Ryan. Judge Ohlson and Judge Sparks both dissent, and both write separate dissenting opinions.

Chief Warrant Officer (W-2) Jessie was convicted contrary to his pleas of not guilty, by a general court-martial composed of members, of two specifications of sexual assault of a child in violation of Article 120b, and was sentenced to confinement for four years, a reprimand, and to be dismissed. The Army CCA affirmed the findings and sentence in an unpublished en banc opinion, in which it refused to consider whether a policy in place at the Joint Regional Confinement Facility (JRCF) at Fort Leavenworth, Kansas, where Jessie was confined, warrants reduction of the sentence under the CCA’s sentence-appropriateness power.

Specifically, Military Correctional Complex Standard Operating Procedure 310 (SOP 310) – which has since been changed – prohibited Jessie from having any contact with children including his own biological children, because he was convicted of a child sex offense. Jessie challenged the SOP on appeal. He did not claim that it was cruel and unusual punishment (under the Eighth Amendment or Article 55), but he did ask for reduction of his sentence. The CCA held that it could consider Jessie’s claim, but it declined to do so, observing that the claim:

inevitably involves determining the outer limits of what is an acceptable prison policy for familial contact by convicted child sex offenders. That we might consider the claim does not mean we should. This is a claim we are poorly positioned to consider, and that within the structure of the military justice system is better entrusted to a determination by persons other than this Article I court.

United States v. Jessie, No. 20160187, slip op. at 10 (A. Ct. Crim. App. Dec. 28, 2018). CAAF then granted review of three issues:

I. Whether the Army court erred by considering military confinement policies but refusing to consider specific evidence of Appellant’s confinement conditions.

II. Whether the Army court conducted a valid Article 66 review when it failed to consider Appellant’s constitutional claims.

III. Whether Appellant’s constitutional rights were violated by a confinement facility policy that barred him from all forms of communication with his minor children without an individualized assessment demonstrating that an absolute bar was necessary.

The majority answers only the first two questions, holding that the CCA was not only right to refuse to consider specific evidence of Jessie’s situation, but that it was prohibited from considering that evidence because it is not part of the record of trial, and accordingly the CCA conducted a valid review. The majority refuses to address the third question, “because the documents that Appellant cites to support these claims are outside the record.” Slip op. at 15.

Judge Ohlson dissents from the majority’s “inordinately restrictive view of this issue” that he views “as misguided.” Ohlson, J., diss. op. at 1. He would remand the case to the CCA with emphasis that “the CCA has broad discretion to permit the parties to supplement the record.” Ohlson, J., diss. op. at 6.

Judge Sparks also dissents, as he believes that Article 66 requires a CCA to consider “any colorable constitutional claim related to sentence appropriateness even if that requires review of documents outside the record of trial.” Sparks, J., diss. op. at 1. Furthermore, he notes that CAAF itself has recently considered materials from outside the record in resolving cases, including just last year United States v. Navarette, 79 M.J. 123 (C.A.A.F. Aug. 1, 2019) (CAAFlog case page), where CAAF remanded the case to the Army CCA for further review of the appellant’s competency based on events that occurred long after the trial ended.

In Jessie, however, CAAF holds that “Article 66(c), UCMJ, does not permit the CCAs to consider matters that are outside the entire record.” Slip op. at 15.

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In the Army cases of United States v. Wall, No. 19-0143/AR (CAAFlog case page), and United States v. Gonzalez, No. 19-0297/AR (CAAFlog case page), CAAF is reviewing whether a CCA may reassess a sentence while also authorizing a rehearing.

A three-judge panel of the Army Court, however, recently acknowledged that it can’t do those things together. In United States v. Moynihan, No. 20130855 (A. Ct. Crim. App. Mar. 10, 2020) (link to slip op.), the CCA concludes that “authorizing a sentence alone rehearing was always intended to be an ‘either-or’ proposition with this court’s clear authority to reassess a sentence,” and that “given our sentence reassessment, it was improper, and in error, for this court also to remand the case with the option for the convening authority to order a rehearing on sentence alone.” Slip op. at 4.

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The outbreak of the SARS-CoV-2 coronavirus in the United States has had an obvious impact on military justice. From postponements at the Supreme Court (which delayed the oral argument in Briggs), to postponements at CAAF and the CCAs, to delays in courts-martial, much military justice activity is on hold as our country responds to the virus. That response has taken many different forms (such as significant curtailment of constitutionally-protected rights in my home state of Massachusetts), largely based on models of the harm that the virus could cause. Those models are the focus of this note.

Late yesterday, the Institute for Health Metrics and Evaluation (IHME) at the University of Washington updated its coronavirus model. The IHME model seems to be the most credible of the public models for the disease in the United States. That, however, isn’t saying much.

The April 5 update is a day late (IHME had promised an update on the 4th), and more than the rhetorical dollar short. The model shows three metrics – hospital resource usage, deaths per day, and total deaths – and all three are either at the high end, or totally outside of, reality.

Take, for instance, total deaths from Coronavirus disease 2019 (COVID-19). IHME reports that as of March 28 there were 2,030 actual deaths from COVID-19 in the United States. It doesn’t provide a source for that number, and good luck reproducing it yourself. The Centers for Disease Control reports just 1,150 COVID-19 deaths through March 28 (archived here and here), while the World Health Organization reported 1,668 US deaths as of the morning of March 29, both dramatically less than IHME’s claim of 2,030.

Counting deaths assumes, of course, that there’s a reliable way to attribute a death to the coronavirus rather than some other cause. It’s intuitively obvious that not every person who dies with coronavirus dies from coronavirus. Along those lines, the CDC provides this disclaimer with its data:

Coronavirus disease deaths are identified using the ICD–10 code U07.1. Deaths are coded to U07.1 when coronavirus disease 2019 or COVID-19 are reported as a cause that contributed to death on the death certificate. These can include laboratory confirmed cases, as well as cases without laboratory confirmation. If the certifier suspects COVID-19 or determines it was likely (e.g., the circumstances were compelling within a reasonable degree of certainty), they can report COVID-19 as “probable” or “presumed” on the death certificate.

Put differently, coronavirus need only contribute to the death for it to count as a COVID-19 fatality. Accordingly, it’s unlikely that anyone is undercounting COVID-19 deaths in the United States. IHME’s model, however, looks to be significantly overcounting actual deaths and incorporating that overcount into its projections.

Those projections are also demonstrably wrong, though IHME seems to be deliberately hiding that fact. The first of their graphs is projected hospital resource usage, and it is consistently higher than reality. Suspiciously, IHME doesn’t include actual (or whatever it considers to be actual) hospital usage figures in its public-facing presentation, but some actual data is easily obtained from other sources. Hospital utilization in New York state, for instance, is reported by Governor Cuomo in his daily press briefings, and those real-world numbers are consistently and significantly lower than the IHME projections.

For example, yesterday Governor Cuomo reported 16,479 people hospitalized and 4,376 ICU patients (link to video) in the State of New York, and he showed this slide:

IHME’s projection for New York on April 5, however, is significantly higher, at 23,796 hospitalizations and 6,033 in the ICU:

As a reminder, IHME updated the projections on the evening of April 5. It also claims that it updates its model daily. Nevertheless, the projection simply doesn’t reflect reality; not even reality on the day of the update. Nor, it seems, does IHME want it to reflect reality, as the total number of hospital beds and ICU beds shown as existing in New York has remained constant, despite a massive federal response to New York over the past few weeks.

The federal response to the coronavirus outbreak has, in fact, been incredible. Department of Defense and Department of Homeland Security personnel, in particular, are involved in what must be the largest domestic mobilization since the Civil War. Their calm professionalism and unselfish dedication to duty, coupled with President Trump’s steady leadership, are a welcome reminder of the resiliency and tenacity of America.

At the other end of the response continuum are catchphrases like social distancing (meaning physical distancing) and flattening the curve; panicky and blatantly partisan state and local officials; and no shortage of fake news. This widely-publicized chart, for example, with its unlabelled axes and its false assumption of fixed healthcare system capacity, is a good illustration of how bad the general public discourse about the coronavirus has been:

COVID-19 is, of course, a serious disease. IHME projects 81,766 deaths by August 4. That’s an improvement from the initial projection of 2.2 million American deaths from the coronavirus, which is a great accomplishment by the officials leading the response, but it’s still a lot of deaths. Nevertheless, it’s important to keep those numbers in perspective. Over 2.8 million Americans died in 2017 (a typical year); more than 7,600 per day. A significant number of those deaths were from preventable causes, including 169,936 accidents and 47,173 suicides (a disproportionate number involving veterans). Heart disease is also largely preventable, and it killed a whopping 647,457 Americans. Even garden-variety influenza and pneumonia killed 55,672.

So take care of yourself and your buddy, stay focused on your mission, wash your hands, and remember that an appeal to authority is a logical fallacy.

This week at SCOTUS: The Court denied review in McDonald (CAAFlog case page) and Voorhees (CAAFlog case page). I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking four cases:

This week at CAAF: CAAF postponed the April oral arguments and cancelled the May oral argument dates. The next scheduled date for oral arguments at CAAF is June 2, 2020.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on May 1, 2020.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on April 24, 2020.

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

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

On Wednesday CAAF granted review in this Army case:

No. 20-0090/AR. U.S. v. Jesus D. Cardenas. CCA 20180416. 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 granted on the following issue:

WHETHER THE ARMY COURT, AFTER FINDING APPELLANT’S CONVICTIONS WERE MULTIPLICIOUS, ERRED IN PERMITTING THE GOVERNMENT TO CHOOSE WHICH OF THE APPELLANT’S CONVICTIONS TO DISMISS ON APPEAL.

Briefs will be filed under Rule 25.

The CCA’s decision is available here. Finding the appellant’s convictions of sexual assault and maltreatment are multiplicious (because they were based on the same underlying act), the CCA held:

Concluding that appellant’s conviction of maltreatment is multiplicious for findings with his conviction of sexual assault, we must set aside one of the convictions to remedy the error. The government has requested this court set aside and dismiss appellant’s conviction of maltreatment. In the past, our superior court has permitted the government to make such an election. See United States v. Palagar, 56 M.J. 294, 296-297 (C.A.A.F 2002); United States v. Frelix-Vann, 55 M.J. 329, 333 (C.A.A.F. 2001 ); and United States v. Cherukuri, 53 M.J. 68, 74 (C.A.A.F. 2000). Consistent with our superior court’s guidance, we grant the government’s request in our decretal paragraph.

Slip op. at 7 (emphasis added).

In this order, reproduced below, CAAF announces that the April oral arguments will be held in June:

By Order of the Court dated March 30, 2020, the five hearings previously scheduled for April 20-22 were postponed pending further Order of the Court.

Per Order of the Chief Judge, these cases will be called for hearing beginning on the June 2, 2020 date that has long been on the Court’s calendar. Wednesday, June 3 and Thursday, June 4 are now added as additional hearing dates for these cases.

Prior to rescheduling, the Court will entertain consent motions from the parties to forgo oral argument,if counsel for both sides wish the Court to decide the cases on brief, with said motions due no later than Monday, April 20, 2020. The Court may or may not grant the motion. In the absence of a joined motion dispensing with oral argument, counsel are advised that the pending cases of Watkins 19-0376/MC, Armendariz 19-0437/MC, Bergdahl 19-0406/AR, Reyes 19-0339/AR and Blackburn, 20-0071/AF will be setfor hearing June2, 3 and 4, 2020, by updated hearing notices pertaining to each case.

In the following order available here, CAAF postpones the oral arguments scheduled for April:

The United States Court of Appeals for the Armed Forces remains open, with internal procedures to keep the essential business of the Court running—while minimizing social contact.

In view of the extension of the federal COVID-19 pandemic social distancing guidelines to April 30, 2020, by order of the Chief Judge:

The hearings scheduled for 20, 21 and 22 April, 2020, are hereby postponed pending further Order of the Court.

This week at SCOTUS: The Solicitor General filed this brief in opposition to the cert. petition in Richards. Richards responded with this motion requesting a two-week delay of distribution of the petition for conference, to enable him to file a reply. The Court granted the motion. In other news, the petition in Kelly was denied.

I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking five cases:

This week at CAAF: The next scheduled oral arguments at CAAF are on April 20, 2020.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on May 1, 2020.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on April 24, 2020.

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

This week at the NMCCA: The Navy-Marine Corps CCA postponed the oral argument in Hedgecock (noted last week) to a date to be determined.

CAAF decided the Army case of United States v. Turner, __ M.J. __, No. 19-0158/AR (CAAFlog case page) (link to slip op.), on Wednesday, March 25, 2020. Considering a specification of attempted murder that failed to expressly allege that the attempt was unlawful (a necessary term because military service involves lawful killing), a majority of the court reads the specification with maximum liberality because the defense waited until after findings to object, and affirms the conviction and the decision of the Army CCA.

Judge Ohlson writes for the court, joined by all but Judge Maggs, who dissents.

CAAF granted review to determine:

Whether the specification of Charge I alleging an attempted killing fails to state an offense because it does not explicitly, or by necessary implication, allege the attempted killing was unlawful.

Specialist (E-4) Turner was charged with a specification that read:

that, Specialist Malcolm R. Turner, U.S. Army, did, at or near Clarksville, Tennessee, on or about 1 January 2015, attempt to kill with premeditation Specialist [C.SG.] by means of shooting her with a loaded firearm, causing grievous bodily injury.

The charge arose from a violent encounter involving Turner, his wife, and a the victim. Turner served with the victim in Korea, and Turner had an adulterous relationship with her that ended when she learned he was married. The victim later learned that she was pregnant, gave birth, and sought child support from Turner. In 2015, Turner and his wife drove from Colorado to Tennessee to confront the victim. During the confrontation, Turner shot the victim multiple times. He was ultimately convicted of attempted murder (the specification at issue), conspiracy to commit premeditated murder, maiming, and obstruction of justice, and sentenced to confinement for life without the possibility of parole, reduction to E-1, total forfeitures, and a dishonorable discharge. The Army CCA reversed the obstruction conviction (as factually insufficient) and conditionally dismissed the maiming charge, but affirmed the other findings and affirmed the sentence.

During the court-martial, Turner’s defense counsel objected to the attempted murder specification as failing to state an offense. However, counsel did not do so until after the members found Turner guilty. CAAF does not explicitly say that the delay was for purely tactical reasons, but it does suggest as much with a footnote quoting the Ninth Circuit’s observation that “delay in raising the issue suggests a purely tactical motivation of incorporating a convenient ground of appeal in the event the jury verdict went against the defendants.” Slip op. at 9 n.7 (citation omitted). That’s problematic because CAAF’s precedent strongly favors earlier objections, even though the Rules for Courts-Martial do not require an earlier objection to the failure of a specification to state an offense (something Judge Maggs highlights in his dissenting opinion). Specifically, when a specification is challenged at trial, CAAF reads the specification narrowly; but when it is first challenged after trial, it is read with “maximum liberality.” Slip op. at 7.

The result in this case turns on the majority’s conclusion that the defense objection was made after trial, and so the maximum liberality standard applies and the conviction is affirmed. Judge Ohlson’s majority opinion does not explicitly say that an earlier objection would have led to a different result, but it strongly implies that. Judge Maggs’ dissenting opinion, however, is clear that the specification fails under a narrow reading:

I agree with the Court’s implication that apart from the “maximum liberality” standard, the specification fails to allege criminality either expressly or by necessary implication.

Diss. op. at 3. In other words, Turner’s conviction of attempted murder is based on a deficient specification, but the conviction is affirmed because Turner’s defense counsel waited until after findings to object.

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This week at SCOTUS: The Supreme Court postponed its March oral arguments, including the argument in Briggs (that was scheduled for March 23). The arguments have not yet been rescheduled.

I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking five cases:

This week at CAAF: The next scheduled oral arguments at CAAF are on April 20, 2020.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on May 1, 2020.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on April 24, 2020.

This week at the CGCCA: The Coast Guard CCA’s website 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 Wednesday, March 25, 2020 at 10 a.m. However, according to this order, the hearing is closed to the public at the request of the appellant because “counsel intends to discuss privileged contents of [the appellant’s] Rule for Courts-Martial 706 mental health examination.”

United States v. Hedgecock, No. 201800333

Issues:
I. Did the military judge abuse his discretion when he denied defense counsel’s motion to compel the convening authority to appoint Dr. Stephen Zieman, Ph.D., or an adequate substitute neuropsychologist, as an expert consultant to the Defense?

II. Military Rule of Evidence 409 prohibits the admission of evidence of furnishing, promising to pay, or offering to pay medical bills to prove liability for an injury. Was it plain error when the military judge allowed the Government to admit evidence that Appellant offered to pay J.A.W.’s medical expenses to prove Appellant’s “consciousness of guilt”?

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

United States v. Baas, No. 19-0377/MC (CAAFlog case page): Oral argument audio (wma)(mp3)

United States v. Moore, No. 20-0119/AR (CAAFlog case page): Oral argument audio (wma)(mp3)

The audio is also available on our oral argument audio podcast.

The following notice appears on CAAF’s website:

Due to a broken network connection, 3/16/2020 audio hearing recordings for U.S. v. Prasad (19-0412/AF) and U.S. v. Rich (19-0425/AF) have been lost.

CAAF will hear oral argument in the certified Army case of United States v. Moore, No. 20-0119/AR (CAAFlog case page), on Tuesday, March 17, 2020, after the argument in Baas. The case is an interlocutory appeal by the prosecution of a military judge’s ruling that dismissed all of one specification and part of a second specification for violation of the statute of limitations based on a post-referral major change. The Judge Advocate General of the Army certified one issue to CAAF:

Did the army court err when, upon reconsideration, it determined that the 5-year statute of limitations barred the rehearing of the two sexual assault specifications?

Staff Sergeant (E-6) Moore was convicted, by a general court-martial composed of officer members, of two specifications of violating a no-contact order, one specification of assault consummated by a battery of his stepdaughter, and six specifications of sexually assaulting his stepdaughter. The panel sentenced Moore to confinement for 20 years, total forfeitures, reduction to E-1, and a dishonorable discharge. On review, in an opinion available here, the Army CCA reversed five of the six convictions of sexual assault because of a Hills error, but it affirmed one conviction because it found the evidence for that allegation to be overwhelming. The CCA then authorized a rehearing, and CAAF summarily affirmed. The CCA also observed that at any such rehearing, Moore’s affirmed conviction of sexual assault could properly be used as evidence of his propensity to commit the other five alleged offenses.

The case was then returned to the convening authority, who ordered a rehearing. Prior to that, however, Army prosecutors amended the specifications to change the nature of the alleged offense. The specifications (or at least the two specifications in issue at CAAF) alleged sexual assault by causing bodily harm, and the change was to the nature of that bodily harm. Before the change the bodily harm in each allegation consisted of the application of force; after the change the bodily harm was a nonconsensual sexual act.

Those changes ultimately led the military judge to find a violation of the statute of limitations, and the prosecution appeals that finding.

The Government Division’s argument focuses on Article 34(c), which permits changing a specification to make it “conform to the substance of the evidence” contained in an Article 32 report. Article 34(c) was the focus of CAAF’s decision last term in United States v. Stout, 79 M.J. 168 (C.A.A.F. Aug. 22, 2019) (CAAFlog case page), in which a majority of the court applied the statute to affirm modified specifications notwithstanding language in R.C.M. 603(d) that would have prohibited such changes. Stout was also a case involving a rehearing where the prosecution made significant changes to the specifications, and CAAF’s decision provides a clear exception that – at least in a case such as this – appears to swallow the rule against such changes:

Like this case, Stout involved amendments made prior to a referral to a rehearing to conform specifications with the evidence adduced at an Article 32, UCMJ, investigation held prior to the original trial. Id. at 168-170. Here, just as in Stout, Article 34(c), UCMJ, specifically authorized the amendments and did not require a new preferral. Therefore, because the government neither preferred anew nor had an obligation to do so, Article 43(b)(1), UCMJ, dictates that the statute of limitations remained tolled by the receipt of the preferred specifications by the SCMCA on December 11, 2013.

Gov’t Div. Br. at 21.

Moore’s brief argues that Article 34 is not relevant to the issue in this case.

Case Links:
ACCA opinion
ACCA opinion on reconsideration
Blog post: CAAF grants review
Appellant’s (Gov’t Div.) brief
Appellee’s brief
Appellant’s (Gov’t Div.) reply brief
Blog post: Argument preview

This week at SCOTUS: The Solicitor General filed this reply brief in Briggs on Friday. Additionally, the petitioner in McDonald filed this reply to the Solicitor General’s opposition to the cert. petition, and the petition was distributed for conference on March 27. Finally, the petition in Voorhees was also distributed for conference on March 27.

I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking five cases:

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

Monday, March 16, 2020, at 9:30 a.m.:

United States v. Prasad, No. 19-0412/AF (CAAFlog case page)

Issue: Whether the Air Force Court erred in its first review of Appellant’s case by affirming the findings of guilt for Specifications 1 and 3 of Charge 1 when it found prejudicial error as a result of a Hills violation.

Case Links:
AFCCA opinion
AFCCA opinion after sentence rehearing
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

Followed by:

United States v. Rich, No. 19-0425/AF (CAAFlog case page)

Issues:
I. Did the Court of Criminal Appeals err when it found that mistake of fact as to consent is not a special defense “in issue” for the offense of sexual assault by inducing a belief by concealment that Appellant was someone else?

II. If mistake of fact was not a special defense “in issue,” did the military judge abuse his discretion by denying the defense request for an instruction on mistake of fact?

Case Links:
AFCCA opinion (78 M.J. 591)
AFCCA opinion on reconsideration (en banc) (79 M.J. 572)
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

Tuesday, March 17, 2020, at 9:30 a.m.:

United States v. Baas, No. 19-0377/MC (CAAFlog case page)

Issues:
I. Did admission of an allegedly positive Diatherix Laboratories test for gonorrhea without testimony at trial of any witness from Diatherix violate the Sixth Amendment confrontation clause?

II. Did the lower court abuse its discretion in admitting an alleged positive Diatherix test result for gonorrhea in a child’s rectal swab-where Diatherix failed to follow its own procedures and the result was of near zero probative value?

Case Links:
NMCCA oral argument audio
NMCCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Blog post: Argument preview

Followed by:

United States v. Moore, No. 20-0119/AR (CAAFlog case page)

Issue: Did the army court err when, upon reconsideration, it determined that the 5-year statute of limitations barred the rehearing of the two sexual assault specifications?

Case Links:
ACCA opinion
ACCA opinion on reconsideration
Blog post: CAAF grants review
Appellant’s (Gov’t Div.) brief
Appellee’s brief
Appellant’s (Gov’t Div.) reply brief
Blog post: Argument preview

This week at the ACCA: The next scheduled oral argument at the Army CCA is on May 1, 2020.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on April 24, 2020.

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

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on March 25, 2020.

CAAF will hear oral argument in the Marine Corps case of United States v. Baas, No. 19-0377/MC (CAAFlog case page), on Tuesday, March 17, 2020, at 9:30 a.m. The court granted review of two issues involving the admission of a laboratory test result:

I. Did admission of an allegedly positive Diatherix Laboratories test for gonorrhea without testimony at trial of any witness from Diatherix violate the Sixth Amendment confrontation clause?

II. Did the lower court abuse its discretion in admitting an alleged positive Diatherix test result for gonorrhea in a child’s rectal swab-where Diatherix failed to follow its own procedures and the result was of near zero probative value?

Corporal (E-4) Baas was convicted of numerous offenses including rape of a child (his son, who was one year old at the time). The evidence supporting the rape conviction included a positive gonorrhea test of the child. Baas told military law enforcement that he had gonorrhea (a sexually-transmitted disease) and he encouraged them to test the child for it in the belief that the test would exonerate him. Swabs were taken from the child by a pediatrician and sent to Diatherix Laboratories, where a nucleic acid amplification test (NAAT) revealed the positive result. However, the pediatrician who took the swabs explained that the NAAT was a screening test that was susceptible to false positives, and that more reliable tests should be performed to confirm the diagnosis.

Those confirmatory tests were not performed. Rather, the child was treated with antibiotics, rendering further testing impossible. Nevertheless, the prosecution moved to introduce the NAAT result, and the parties litigated its admissibility. The military judge ultimately ruled that the result was admissible because the test was reliable and it was for the members to determine what weight to give the result.

The Navy Marine Corps CCA affirmed, concluding that the Diatherix lab report was nontestimonial (and so could be admitted without calling a witness from the laboratory) because the report was merely a business record of a test conducted primarily for treatment (not law enforcement), the report contained only unambiguous factual matters, and the report was not primarily created for the purpose of introducing it as evidence at trial.

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