Volume 61 of the Air Force Law Review has been electronically published within the Air Force community, though the AFJAGS web site doesn’t even yet post Volume 60.
When Volume 61 becomes generally available, military justice practitioners will find two articles of interest. One is a short piece by two military judges discussing United States v. Walters, 58 M.J. 391 (2003), and its progeny. Lt Col John E. Hartsell & Maj Bryan D. Watson, The Decay of “Divers” and the Future of Charging “Under Divers Occasions” in Light of United States v. Walters, 61 A.F. L. Rev. 185 (2008). The judges recommend that trial counsel avoid Walters problems at the charging stage by using mega-specs rather than alleging “divers occasions.” Id. at 193.
The other article of interest is a longer piece arguing that military appellate courts too frequently find plain error. MAJ Terri J. Erisman, Defining the Obvious: Addressing the Use and Scope of Plain Error, 61 A.F. L. Rev. 41 (2008). She concludes, “The doctrine of plain error was intended to be an extraordinary remedy to prevent miscarriages of justice. However, the current application of the doctrine in the military has transformed it into an empty principle requiring no more in depth review than an error that was vigorously objected to at trial.” Id. at 77. She proposes a new R.C.M. governing plain error, which would provide:
A finding or sentence may not be held incorrect on the basis of an error that was not objected to at trial unless an accused establishes that:
(1) the error constitutes “plain error;” and
(2) the error seriously affected the fairness, integrity, or public reputation of judicial proceedings.