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).

8 Responses to “Catching up with the CCAs”

  1. LCDR X says:

    Interesting decision on mental capacity.  NMCCA decided a substantially similar case (US v. Hooper) back around 2005-06.  If memory serves, they remanded the appellant to the custody of the Attorney General, whatever that means (does anyone know?) 

  2. Ed says:

    custody of the Attorney General usually means prison.

  3. Charlie Gittins says:

    DOJ has a couple of facilities (Buttner, NC is one) that are prisons with an allegedly well staffed medical unit.  I had a client sent there once and our retained expert psych was unimpresed with their qualifications, competence and clinical approach.  They really exist to get the prisoner “competent” to go to trial. 

  4. aflapr says:

    For Newton – what about the CAAF decision in US v Phillips? I know that was about “service discrediting” conduct, but isn’t the rationale analagous?

    United States v. Phillips which held:
    “In general, the government is not required to present evidence that anyone witnessed or became aware of the conduct. Nor is the government required to specifically articulate how the conduct is service discrediting. Rather, the government’s obligation is to introduce sufficient evidence of the accused’s allegedly service discrediting conduct to support a conviction.”

  5. Lieber says:

    That Parrett decision is bogus (the whole case is bogus…Navy LT gets ticked off that his gf cheats on him and takes it out on the enlisted guy…grow the ____ up).  This retrogade patriarchial nonsense is part of the reason why the military is losing touch with civilian society.  Total B.S.  (and it’s part of our problem with sexual assaults too).

  6. anon says:

    One of those military justice issues lurking in the background is the use of forced medication to make a criminal defendant component.  The operative case law on the issue is Sell v. United States (it would be too easy for the Supreme Court to have addressed this issue in the context of a military criminal proceeding).  I do not recall a military appellate case on the issue and  I suspect there will be novel jurisdictional questions of whether a CCA has jurisdiction to hear such an issue once the case is dismissed due to lack of mental competency.  Ice cream sandwich to the first appellate counsel to bring a writ of prohibitum on the issue at

  7. LCDR X says:

    Ed/Charlie – that’s interesting…in Hooper’s case, the appellant was only awarded a BCD at trial.  NMCCA found that he would likely never be mentally competent again, but I don’t know what authority they would have to order him confined post-trial.  Perhaps the language was a nullity?

  8. Brian lc says:

    I don’t understand the CG opinion in Russel.  So I read it again, and that didn’t help.  The opinion states, clearly, that a 134 offense needs to have words of criminality other than the terminal elements.  Failure to include those words, fails to state an offense.
    I’ll leave others to inform whether this conforms to case law, and what it would do to our practice (e.g. most model specs).  But, I am concerned that the court requires the government to allege an element that is not listed in the statute.  If such an element is required to state an offense, but is not part of Article 134, how is an accused on notice of what constitutes a 134 violation?
    Put differently, isn’t the CCA saying that Article 134 fails to state an offense as written?  If, as written, Article 134 fails to state an offense, why can the government save it by adding an element that is not in the statute?