A reader forwarded me this Brady notice from the General Counsel of the Department of Defense, along with this Air Force Drug Testing Laboratory study and this Naval Drug Screening Laboratory study.

The bottom line is that the laboratories determined that under certain circumstances a leaking bottle in a box of urinalysis tests can contaminate other bottles in the same box, leading to false positive results.

At first glance, this might look like a serious problem for the armed forces drug screen program (that relies on urinalysis). According to this Military Times story, the DoD seems to be panicking. But a closer analysis shows that this is just the latest in a series of small developments that reveal the limitations of forensic evidence.

Other examples include false positives at drug screening labs (like the ones discussed here and here), and misconduct by lab employees (like former chemist Phillip Mills).

The two new studies from the Air Force and Naval laboratories may tend to reduce the weight of urinalysis evidence to prove illegal drug use, but they will have a very limited practical application.

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CAAF decided the interlocutory Army case of United States v. Hendrix, __ M.J. __, No. 18-0133/AR (CAAFlog case page) (link to slip op.), on Tuesday, June 19, 2018. Rejecting the military judge’s conclusion that a dismissal of charges (followed shortly by a re-preferral) was a subterfuge to avoid the regulatory (R.C.M. 707) speedy trial right, CAAF finds no speedy trial violation and reverses the military judge’s decision that dismissed the charges with prejudice, affirming the decision of the Army CCA.

Judge Sparks writes for a unanimous court.

The accused, Private (E-2) Hendrix, was charged on November 29, 2016, with two specifications of sexual assault. The alleged victim declined to participate in any prosecution, and the convening authority dismissed the charges. But then – three days later – the alleged victim changed her mind and the charges were re-preferred one day after that. Hendrix was then arraigned on June 8, 2017; 156 days after the first preferral.

That arraignment exceeded the 120-day deadline in R.C.M. 707. Hendrix moved to dismiss, and the military judge granted the motion and dismissed the specification with prejudice after concluding that the convening authority’s dismissal of the original charges was a subterfuge. But the prosecution appealed and the Army CCA reversed, concluding that the dismissal was not a subterfuge because it was based on the alleged victim’s unwillingness-turned-willingness to participate. CAAF then granted review to determine:

Whether the military judge abused his discretion by dismissing the charge and specifications with prejudice for a violation of R.C.M. 707.

He did, explains Judge Sparks, because “dismissal and repreferral are fully permissible under the provisions of R.C.M. 707.” Slip op. at 5. As for the alleged victim’s vacillating willingness to participate, the court finds that this actually supported the convening authority’s action, because “the fact that the complaining witness changed her mind about testifying dramatically changed the strength of the Government’s case.” Slip op. at 6.

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CAAF added two new cases to its master docket yesterday, one a certification from the Judge Advocate General of the Navy, and the other a grant.

First, the certified case:

No. 18-0282/NA. United States, Appellant v. Paul E. Cooper, Appellee. CCA 201500039. Notice is hereby given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:

DID THE LOWER COURT ERR NOT FINDING WAIVER OF THE RIGHT TO REQUEST INDIVIDUAL MILITARY COUNSEL WHERE APPELLEE WAS ADVISED OF HIS RIGHT TO REQUEST AN INDIVIDUAL MILITARY COUNSEL, AGREED HE UNDERSTOOD THE RIGHT BUT WANTED INSTEAD TO BE REPRESENTED BY TRIAL DEFENSE COUNSEL, AND MADE NO MOTION FOR INDIVIDUAL MILITARY COUNSEL?

DID THE LOWER COURT ERR IN NOT APPLYING THE STRICKLAND INEFFECTIVE ASSISTANCE TEST WHERE THE GOVERNMENT AND TRIAL JUDGE PLAYED NO PART IN THE DEFENSE’S FAILURE TO REQUEST INDIVIDUAL MILITARY COUNSEL, AND IF SO, DID APPELLEE SUFFER INEFFECTIVE ASSISTANCE OF COUNSEL?

IF STRICKLAND DOES NOT APPLY, DID THE LOWER COURT CORRECTLY FIND APPELLEE WAS DEPRIVED OF HIS STATUTORY RIGHT TO REQUEST INDIVIDUAL MILITARY COUNSEL?

DID THE LOWER COURT ERR IN IT’S PREJUDICE ANALYSIS FOR APPELLEE’S ASSERTED DEPRIVATION OF HIS STATUTORY RIGHT TO INDIVIDUAL MILITARY COUNSEL WHEN APPELLEE DID NOT PRESERVE THE ISSUE AT TRIAL, RAISED THE ISSUE FOR THE FIRST TIME ON APPEAL, AND HAS ALLEGED NO SPECIFIC PREJUDICE?

The Navy-Marine Corps CCA’s decision is available here. The CCA concluded:

In this case we find that a member of an agent of the government—RLSO SE—frustrated the appellant’s right to legal advice early in the case. We find formation of an attorney-client relationship regarding the facts of this case in direct response to that frustration. And finally, we find deprivation of representation by that attorney, with whom the relationship was shared, through no fault of the appellant. The facts of this case lead us to conclude the appellant suffered material prejudice when his IMC request for CPT T.N. was never drafted and forwarded to CPT T.N.’s chain of command for consideration and possible approval.

Slip op. at 23. For the waiver issue, the CCA found:

To the extent the appellant waived his right to request CPT T.N. as an IMC, he relied on an erroneous representation of CPT T.N.’s unavailability.

Slip op. at 19.

Next, the granted case:

No. 18-0209/AR. U.S. v. Jeffrey G. Eugene. CCA 20160438. 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 the petition is granted on the following issues:

I. WHETHER APPELLANT’S REQUEST TO CRIMINAL INVESTIGATION COMMAND [CID] THAT HIS CELL PHONE BE RETURNED WAS A WITHDRAWAL OF THE THIRD PARTY CONSENT TO SEARCH GIVEN BY APPELLANT’S WIFE IN APPELLANT’S ABSENCE.

II. WHETHER THE ARMY COURT ERRED IN DETERMINING THE APPLICABILITY OF THE INEVITABLE DISCOVERY DOCTRINE WHERE (1) THE CID AGENTS FAILED TO TAKE ANY STEPS TO OBTAIN A WARRANT AND (2) THE CASE TOOK A “DEAD-END” UNTIL THE WARRANTLESS SEARCH.

Briefs will be filed under Rule 25.

The Army CCA’s decision is available here and explains that:

Appellant argues that he withdrew his wife’s third-party consent, which begs the question: can one individual withdraw another person’s consent, at least where he has a greater property interest in the evidence being searched? This appears to be a matter of first impression in this court.

Slip op. at 5. The CCA did “not extinguish the possibility that there may exist a situation in which a review of
the totality of the circumstances may allow for withdrawal of third-party consent to search personal property,” slip op. at 6, but the court concluded that the appellant did not actually withdraw consent (and also that the inevitable discovery doctrine applies).

CAAF decided the Marine Corps case of United States v. Dinger, __ M.J. __, No. 17-0510/MC (CAAFlog case page) (link to slip op.), on Monday, June 18, 2018. The court holds that a retired member of the armed forces can be sentenced to a punitive discharge, affirming the decision of the Navy-Marine Corps CCA and the adjudged sentence in this case.

Chief Judge Stucky writes for a unanimous court.

Gunnery Sergeant (E-7) Dinger, USMC (Ret.), pleaded guilty to a number of child exploitation offenses, all of which were committed after Dinger entered retired status following the completion of 20 years of enlisted service in the active component of the Marine Corps. A general court-martial composed of a military judge alone sentenced Dinger to confinement for nine years and a dishonorable discharge, and the convening authority suspended all confinement in excess of 8 years in accordance with a pretrial agreement.

The military judge rejected a trial-stage argument that the sentence could not lawfully include a punitive discharge (because of Dinger’s retired status), and the Navy-Marine Corps CCA again rejected the argument on appeal. CAAF then granted review of a single issue:

10 U.S.C § 6332 states that when a person is placed in a retired status, this “transfer is conclusive for all purposes.” Can a court-martial lawfully sentence a retiree to a punitive discharge?

In yesterday’s opinion Chief Judge Stucky explains that CAAF agrees with the military judge and the NMCCA, overruling precedent insofar as it supports a different outcome.

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In a decision issued today and available here, Judge Lamberth grants Marine Corps Brigadier General John Baker a writ of habeas corpus and vacates the contempt finding made by military commissions judge Air Force Colonel Vance Spath.

Our (somewhat extensive) prior coverage is available here.

Judge Lamberth concludes:

Judge Spath summarily convicted General Baker of criminal contempt and sentenced him for that criminal contempt. Contempt is an offense under Chapter 47A. But Judge Spath’s actions were unlawful because only a military commission acting through its regularly constituted members is authorized to convict a person of any offense under Chapter 47A. And a military judge is not a member of a military commission nor is he “the military commission” within the meaning of that chapter. For this reason the Court will GRANT General Baker’s Petition, issue the writ he requests, and vacate his conviction.

Op. at 27. This conclusion turns on an important difference between the contempt power of a courts-martial and that of a commission. Article 48, 10 U.S.C. § 848, (the court-martial power) begins:

A judge detailed to a court-martial, a court of inquiry, the United States Court of Appeals for the Armed Forces, a military Court of Criminal Appeals, a provost court, or a military commission may punish for contempt. . .

While 10 U.S.C. § 950t(31) (the commission power) begins:

A military commission under this chapter may punish for contempt. . .

This week at SCOTUS: The cert. petition in Condon was distributed for conference on September 24. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking nine cases:

This week at CAAF: CAAF completed its oral argument calendar for the term. Details about the cases reviewed by CAAF this term are available on our 2017 Term of Court page.

This week at the ACCA: The Army CCA will hear oral argument in one case this week:

Thursday, June 21, at 10 a.m.:

United States v. Quill, No. 20160454

Issues:
I. Whether the military judge erred by denying a defense challenge for cause.

II. Whether the military judge erred by admitting appellant’s confession without corroborating evidence under MRE 304(c).

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on June 28, 2018.

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

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

This week at SCOTUS: The cert. petitions in Gray and Bales were distributed for conference on June 21, and the SG waived the right to respond to the cert. petition in Condon. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking nine cases:

This week at CAAF: CAAF completed its oral argument calendar for the term. Details about the cases reviewed by CAAF this term are available on our 2017 Term of Court page.

This week at the ACCA: The Army CCA will hear oral argument in two cases this week:

Tuesday, June 12, at 10 a.m.:

United States v. Morgan, No. 20160573

Issue: [Whether t]he military judge’s repeated exclusion of admissible evidence was an abuse of discretion which deprived SSG Morgan of the right to adequately defend himself.

Friday, June 15, at 10 a.m.:

United States v. Lopez, No. 20140973

Issue: [doesn’t load on the CCA’s website]

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on June 28, 2018.

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

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

For the rest of the world, “a facility for quotation covers the absence of original thought.” Dorothy Sayers, Gaudy Night, 1935. To non-lawyers, quoting is viewed as “saving one the trouble of thinking for oneself, always a laborious business.” A.A. Milne, If I May, 1920.

But, in our profession, perhaps because of the common law’s reliance on stare decisis, an idea expressed as a direct quote from a published case is almost uniformly regarded as being better than one expressed using the author’s own voice. And, what’s better than that? An idea expressed as a direct quote from a case which was itself a direct quote from another case, complete with ‘internal quotations marks’, a team of [brackets] to reflect changes, ellipses thrown in here and there, all tied together with a string site that extends to the end of the page. Whatever the virtue of a quote-driven profession may be, the result is that our writing is painful to read.

Jack Metzler, the government lawyer behind the Twitter handle @SCOTUSplaces, has a proposed solution to the chaos – a new parenthetical: (cleaned up).

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Yeterday CAAF affirmed the findings in a Hills (CAAFlog case page) / Hukill (CAAFlog case page) trailer:

No. 18-0107/AR. U.S. v. Jameson T. Hazelbower. CCA 20150335. On consideration of the granted issue, 77 M.J. 273 (C.A.A.F. 2018), the judgment of the United States Army Court of Criminal Appeals, United States v. Hazelbower, No. 20150335 (A. Ct. Crim. App. Nov. 22, 2017) (unpublished), and the judgment of this Court in United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017), we conclude that the military judge’s erroneous use of charged misconduct for propensity purposes was harmless beyond a reasonable doubt, for “there [i]s no reasonable possibility that the error contributed to [Appellant]’s verdict.” United States v. Hukill, 76 M.J. 219, 222 (C.A.A.F. 2017) (citation omitted). In the instant case, the victims’ accounts were corroborated by a wealth of independent supporting evidence, including (but not limited to) admissions of rape, incriminating text and Skype messages, and the exchange of nude photographs. Given the overwhelming evidence of Appellant’s guilt, we are convinced beyond a reasonable doubt that Appellant was convicted on the strength of the evidence alone. Guardado, 77 M.J. at 94. Therefore, it is ordered that the judgment of the United States Army Court of Criminal Appeals is affirmed.

I discussed CAAF’s grant of review in this post.

CAAF decided the Air Force case of United States v. Hardy, __ M.J. __, No. 17-0553/AF (CAAFlog case page) (link to slip op.), on Tuesday, June 5, 2018. A somewhat fractured court concludes that an unconditional plea of guilty waives any issue of unreasonable multiplication of charges (UMC) (a doctrine that addresses uniquely-military factors increasing the potential for prosecutorial overreach). The decision both extends and affirms the reasoning of the Air Force CCA that found waiver in a published decision almost one year ago today (analyzed here).

Judge Maggs writes for the court, joined by Judges Ryan and Sparks. Chief Judge Stucky concurs. Judge Ohlson dissents. This is Judge Maggs’ first opinion of the court.

Captain (O-3) Hardy pleaded guilty to numerous child sex offenses and was sentenced to confinement for 16 years and one day, total forfeitures, and a dismissal. Hardy’s defense counsel did not seek relief from any UMC at trial. A pretrial agreement limited Hardy’s confinement to 12 years. The pretrial agreement did not, however, include a relatively-common term agreeing to waive all waivable motions.

Waiver is the intentional relinquishment or abandonment of a known right, extinguishes an error, and was the basis for the #3 Military Justice Story of 2017. The mere failure to raise an issue, however, is generally forfeiture, not waiver. A forfeited error is reviewed for plain error (where the burden is on the appellant to prove error that is both plain and prejudicial).

In United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009) (discussed here), CAAF split 3-2 to find that a waive all waivable motions provision waived – rather than merely forfeited – any objection to both multiplicity and unreasonable multiplication of charges. Without such a provision in Hardy’s case, however, Hardy’s appellate defense counsel raised UMC for the first time on appeal. But the Air Force CCA found waiver nonetheless. In a published decision a three-judge panel of the CCA concluded that:

where Appellant both failed to raise unreasonable multiplication of charges at trial and pleaded guilty unconditionally, we find he waived his claim of unreasonable multiplication of charges.

United States v. Hardy, 76 M.J. 732, 739 (A.F. Ct. Crim. App. 2017). CAAF then granted review to determine:

Whether the Air Force Court of Criminal Appeals erred by holding that Appellant waived, rather than forfeited, his claim of unreasonable multiplication of charges.

In today’s opinion four judges agree that the Air Force court was right and any unreasonable multiplication of charges was waived by Hardy’s unconditional plea and failure to object at trial. But Judge Maggs and the majority reach that result with an analysis that Chief Judge Stucky does not join. Judge Ohlson, in turn, doesn’t reach that result at all, concluding that a waiver must be more explicit than the mere failure to object at trial.

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On Friday the Army CCA issued updated rules of practice and procedure (replacing the rules issued on 1 Nov 17).

They’re available here.

This week at SCOTUS: The Solicitor General filed this response to the cert. petition in Gray on May 18, and Gray filed this reply on May 31. The Solicitor General also waived the right to respond to the cert. petition in Bales. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking nine cases:

This week at CAAF: CAAF has completed its oral argument calendar for the term. Details about the cases reviewed by CAAF this term are available at our 2017 Term of Court page.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on June 15, 2018.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on June 28, 2018.

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

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

This week at SCOTUS: I’m tracking three new military cases at the Supreme Court.

First, a petition for certiorari was filed in Bales v. United States, No. 17-1583, on May 16 (discussed here). Second, a pro se petition for certiorari was filed in Condon v. United States, No. 17-0977, on May 22. In United States v. Condon, 77 M.J. 244 (C.A.A.F. Mar. 1, 2018) (CAAFlog case page), CAAF unanimously concluded that it was harmless to show the members a video of Condon’s interrogation during which he invoked his right to counsel. Finally, an extension of time to submit a petition for certiorari in Acevedo v. United States, No. 17A1287, was granted until July 6. In United States v. Acevedo, 77 M.J. 185 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), a majority of CAAF found the conviction of kidnapping by inveiglement (luring or enticing) is legally sufficient.

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

This week at CAAF: CAAF has completed its oral argument calendar for the term. Details about the cases reviewed by CAAF this term are available at our 2017 Term of Court page.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on June 15, 2018.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on June 28, 2018.

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

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

In 2013, Army Staff Sergeant (SSG) Robert Bales pleaded guilty to the 2012 murder of 16 Afghan civilians. The case had been referred capital, and Bales’ plea avoided the possibility of the death sentence. A panel of members sentenced Bales to the maximum possible punishment of life without the possibility of parole. Our coverage of the case is available here.

The Army CCA affirmed the findings and the sentence in an opinion issued last September (link to slip op.). CAAF granted review and summarily affirmed on Feb. 15, 2018. Now Bales seeks certiorari. The petition is available here. The questions presented are:

Whether the Court of Appeals erred when it held that in a capital case, a prosecutor does not have to disclose exculpatory medical evidence in the government’s possession relating to the accused’s state-of-mind to commit 16 homicides where the United States ordered the accused to take mefloquine, a drug known by the U.S. Food and Drug Administration and the U.S. Military to cause long-lasting adverse psychiatric effects, including symptoms of psychosis that may occur years after use.

Whether the Court of Appeals erred when it held that in a capital case, a prosecutor does not have to disclose mitigating impeachment evidence in the government’s possession that Afghan sentencing witnesses flown into the United States left their fingerprints on bombs and improvised explosive devices, especially where the prosecution held the Afghan witnesses out to the jury as innocent “farmers.”

CAAF decided the Army case of United States v. Kelly, __ M.J. __, No.17-0559/AR (CAAFlog case page) (link to slip op.), on Wednesday, May 23, 2018. In a short, tightly-written opinion, CAAF holds that a court of criminal appeals does have the power to disapprove a mandatory minimum punitive discharge, reversing the published en banc (but non-unanimous) decision of the Army CCA.

Chief Judge Stucky writes for a unanimous court.

Disclosure: I represent Sergeant Kelly as his civilian appellate defense counsel and I argued this case at CAAF on his behalf.

Sergeant (E-5) Kelly was convicted of abusive sexual contact and sexual assault, and was sentenced to confinement for one year, total forfeitures, reduction to E-1, and a dishonorable discharge. The punishment of dishonorable discharge was mandatory under Article 56(b) (as enacted as part of the 2013 changes to the UCMJ; analyzed here).

“On appeal before the ACCA, [Kelly] argued that the mandatory minimum sentence of a punitive discharge was inappropriately severe.” Slip op. at 6. The CCA, however, held that it lacked the authority to grant relief. “[T]he en banc ACCA, in a sharply divided 6-4 vote, affirmed, and did not reach the question of whether Appellant’s sentence ‘should be approved.'” Slip op. at 2-3 (quoting Kelly, 76 M.J. at 807). CAAF then granted review to determine:

Whether the Court of Criminal Appeals has the authority to disapprove a mandatory minimum punitive discharge.

The court later specified a second issue involving improper argument by the trial counsel:

In light of this Court’s decisions in United States v. Sewell, 76 M.J. 14 (C.A.A.F. 2017) [CAAFLog case page] and United States v. Pabelona, 76 M.J. 9 (C.A.A.F. 2017) [CAAFlog case page] did the lower court err when it determined the standard of review was waived when there was no objection to improper argument?

Chief Judge Stucky’s opinion for the unanimous court points to yesterday’s opinion in United States v. Andrews, __ M.J. __ (C.A.A.F. May 22, 2018) (CAAFlog case page), to answer the specified issue, and answers the granted issue in the affirmative and sets aside the judgment of the Army court.

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