The events of the past few weeks, such as our Top Ten Military Justice Stories of 2013 and my six-part series on the Military Justice Reforms in the 2013 NDAA, have kept me from writing about a number of interesting opinions from the four service Courts of Criminal Appeals. I’ll discuss a number of those opinions over the course of the next two weeks, mostly in individual posts about individual cases. But here are a number of generally interesting opinions from the past two months:
The Army CCA abated ab initio the general court-martial of a captain convicted of numerous offenses, because:
Currently, appellant does not possess the requisite mental capacity called for by R.C.M. 1203(c)(5). His severe mental health impairments, which have persisted for well over a year—if not much longer—preclude him from understanding, or meaningfully participating and cooperating in his appeal. Further, the prognoses from various highly qualified treating mental health professionals suggest there is slim, if any, hope of appellant recovering or regaining the requisite mental capacity in the foreseeable future such that this appeal could move forward with his active involvement and understanding.
United States v. Tomlinson, No. 20110034 (A.Ct.Crim.App. Dec. 13, 2013) (unpub. op.) (link to slip op.). Here’s wishing the appellant good luck in his treatment.
The Army CCA also considered two Article 134 specifications that charged the appellant, who was required to register as a sex offender, with failing to do so “between on or about 1 October 2009 and on or about 29 July 2010,” as well as “wrongfully send[ing] a picture of himself to his natural daughter, [BN], who was under 18 years of age, focused on his genital area, showing an erection underneath his clothing.” United States v. Newton, No. 20110499 (A.Ct.Crim.App. Dec. 19. 2013) (unpub. op.) (link to slip op.). But at trial, “the government admitted no evidence tending to prove that appellant’s conduct was prejudicial to good order and discipline.” Id. “Therefore,” said the CCA, “on the record before us, we conclude that the evidence is legally and factually insufficient to sustain appellant’s convictions for conduct in violation of Clause 1 of Article 134, UCMJ.” Id. (emphasis added).
The Navy-Marine Corps CCA emphasized that to warrant instructions on the defenses of consent or mistake of fact as to consent, there must be “some evidence” of consent, and not merely “a theoretical possibility of consent.” United States v. Payne, No. 201200477 (N-M.Ct.Crim.App. Dec. 12, 2013) (unpub. op.) (link to slip op.).
The NMCCA also considered the appropriateness of the sentence in a case where the appellant pleaded guilty to committing indecent acts with another, in violation of Article 120, for having sex with someone in the presence of three others (two of whom were asleep; and it’s unclear if the appellant knew that the third was awake and watching). United States v. Parrett, No. 201300197 (N-M.Ct-Crim.App. Dec. 17, 2013) (unpub. op.) (link to slip op.)
Additionally, the NMCCA reversed convictions for multiple sexual offenses because the military judge prohibited the defense from calling a “false confession expert.” The judge’s ruling included a finding that the expert’s testimony “would be irrelevant absent ‘any evidence to suggest that [the accused’s] confession was actually false.'” United States v. Dougherty, No. 201300060, slip op. at 5 (N-M.Ct-Crim.App. Dec. 31, 2013) (link to slip op.). The CCA:
disagree[s] with the military judge’s underlying view that an accused must first put on evidence that his confession was actually false before he may challenge the credibility of his confession. We are persuaded instead by the opinion of the United States Court of Appeals for the First Circuit, which held that the credibility of a criminal defendant’s confession is always at issue from the moment it is entered into evidence.
Dougherty, slip op. at 7. The court authorized a rehearing.
The Air Force CCA considered whether a record of trial was complete, despite lacking the actual charge sheet, the appellant’s written unsworn statement, a written ruling of the military judge, and the sentencing worksheet. The CCA concludes that all of these omissions are “insubstantial.” United States v. Johnson, No. S32057 (A.F.Ct.Crim.App. Nov. 19, 2013) (unpub. op.) (link to slip op.).
Finally (for this post), the Coast Guard CCA overturned convictions for three Article 134 specifications that charged the appellant for his use of a hidden camera in female berthing areas. “Conspicuously missing from these specifications is any word of criminality such as ‘wrongfully.'” United States v. Russell, No. 0287, slip op. at 9 (C.G.Ct.Crim.App. Dec. 9, 2013) (link to slip op.). The court bases its decision in part on its own published opinion from last April in United States v. Hughey, 72 M.J. 809, 813 (C.G.Ct.Crim.App. 2013) (discussed in this post).