CAAF granted review in four cases on Monday:

No. 14-0783/NA. U.S. v. Marshand A. Woods. CCA 201300153.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED BY DENYING A CHALLENGE FOR CAUSE AGAINST THE COURT-MARTIAL PRESIDENT, WHO SAID THE “GUILTY UNTIL PROVEN INNOCENT” STANDARD IS “ESSENTIAL” TO THE MILITARY’S MISSION?

Briefs will be filed under Rule 25.

The NMCCA’s opinion is available here.

No. 15-0011/AF. U.S. v. Joshua K. Plant. CCA 38274.  On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT THE FINDING OF GUILTY TO CHARGE V AND ITS SPECIFICATION (CHILD ENDANGERMENT) BECAUSE THE EVIDENCE FAILED TO PROVE APPELLANT’S ALCOHOL USE ALONE AMOUNTED TO CULPABLE NEGLIGENCE THAT ENDANGERED THE WELFARE OF L.P.

Briefs will be filed under Rule 25.

The AFCCA’s opinion is available here. Appellant’s conviction of child endangerment was based on his consumption of alcohol during a party at his own house, while his approximately 13-month old child slept in another room. The CCA found the evidence to be legally and factually sufficient, concluding that “the appellant’s alcohol use and the circumstances surrounding that alcohol use might foreseeably result in harm to the child, even if such harm would not necessarily be the natural and probable consequences of such acts.” Slip op. at 7.

No. 15-0029/AR. U.S. v. Levi A. Keefauver. CCA 20121026.  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 hereby granted on the following issue:

WHETHER THE ARMY COURT ERRED IN FINDING THE PROTECTIVE SWEEP WAS APPROPRIATE IN TOTAL.

Briefs will be filed under Rule 25.

The ACCA’s opinion is available here. I noted this opinion in August, in this post.

No. 15-0059/NA. U.S. v. Darron D. Ward, Jr. CCA 201400021.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

THE CONVENING AUTHORITY ISSUED AN INSTRUCTION THAT LIMITED COURT-MARTIAL MEMBER NOMINATIONS TO PERSONNEL ONLY IN THE PAY GRADES BETWEEN E-7 AND O-5. THE LOWER COURT FOUND THIS SYSTEMATIC EXCLUSION OF PERSONNEL TO BE ERROR, BUT HARMLESS. SHOULD THIS COURT SET ASIDE APPELLANT’S CONVICTIONS BASED ON THE RATIONALE OF UNITED STATES v. KIRKLAND DUE TO THE UNRESOLVED APPEARANCE OF UNFAIRNESS?

Briefs will be filed under Rule 25.

The NMCCA’s opinion is available here. The CCA found the exclusion of personnel  based on rank to be harmless based on six factors: “(1) no evidence that the errant instruction was issued with an improper motive; (2) no evidence that the CA had an improper motive when detailing the members assigned to the appellant’s court-martial; (3) the CA was a person authorized to convene a general court-martial; (4) the CA was properly advised of his Article 25 responsibilities, and that he could pick any member of his command, not just those who had been nominated; (5) the court members were personally chosen by the CA from a pool of eligible candidates; and, (6) the court members all met the criteria in Article 25, UCMJ.” Slip op. at 5.

19 Responses to “Four new CAAF grants”

  1. RKincaid3 (RK3PO) says:

    So, CAAF granted review of a panel member’s statement that the:

    “GUILTY UNTIL PROVEN INNOCENT” STANDARD IS “ESSENTIAL” TO THE MILITARY’S MISSION.”

     
    Now, why on earth would this be appealable? Isn’t this, after all, the new “norm” in our society–both military and civilian? Especially where the offense at issue involves any kind of sex.
     
    Wasn’t that the message sent by President Obama in his speech last summer wherein he stated that a “dishonorably discharged” and “fir[ing]” were the only appropriate standards?
     
    Isn’t that the message from Congress and others in the military services who are responsible for amending or altering the rules governing due process of law as found in last year’s NDAA? Or elevating victims from mere “witnesses to a crime” to actual “parties” with standing to intervene in litigation?
     
    Wasn’t that the message from the USMCs General Amos and his so-called “Heritage Brief?” Doesn’t the fact that General Amos has been spared any significant adverse consequences from his flagrant use of UCI and other misconduct (related to that alleged UCI) reaffirm the truth of that statement: tolerate whatever gets the point across; and any measure to do that is “necessary to the military mission?”
     
    Isn’t that the message from the latest round of amendments to the RCM proposed in the Federal Register (the comment period for which closed last Thursday)– which are more due process alterations that affect the quality of the military justice process, and not for the better?
     
    Isn’t that the message from military and civilian leaders who have gone out of their way to impose and support a “group think” mindset about what an acceptable outcome is if the case involves sex assault? Consider the “education” training courses we have to sit through; the national “stand-down” days where all training but sex assault training is cancelled and troops have to endure hours of mind-numbing lectures on why we are all guilty of sex assault to one degree or another; or endless showings of the joke of a documentary called “The Invisible War;” or the “oh-so-much-value-added” check mark that evinces the rated troop’s “commitment” to the war against sex assault that now appears on Army performance reports and which supposedly “firmly demonstrates” the military’s battle against sex assault.
     
    Really, what is the difference between this “re-education” group-think program and that of, say, some other government, like the Khmer Rouge in Cambodia, circa 1974? Well, when we in America complete the “re-education” training, we get to go home alive and are not left in some “killing field.” But consider that many of the folks driving the bandwagon on which we are all supposed to enthusiastically jump want to:
     
         Crucify those who are convicted of sex assault (which is just about everyone charged given the absurd scope of the new, new, new
         and soon to be new again, Art. 120);
     
         Destroy any chance of them rebuilding their lives via “Scarlet Letter” as a SOR;
     
         Prevent them from going to college (denying financial aid for a sex assault conviction);
     
         Prevent them from, of all things–playing football; 
     
         Guarantee un-employability;
     
        Someday, maybe have them lose their eligibility for food stamps and other public support; and
     
    Well, it might just be a matter of time before the SCOTUS is asked to reconsider the unconstitutionality of the death penalty for sex assaults.  It really is a travesty that they put an end to that–doggone paternalism!
     
    I mean really. The hypocrisy of teaching this stuff and then being surprised that it has flowed from Congress, through commanders and right down into the jury (panel) deliberation room is exasperating. That was the desired result, wasn’t it? If not, then someone really missed the ball when they prepared and distributed the message. Because it seems to me that the panel member at issue in U.S. v. Woods heard the message loud and clear. And he shamefully, but honestly, spoke up about it.  How dare he!!
     
    I am shocked that CAAF believes that this result offends due process. How quaint–legal considerations affecting the political message? Perish the thought! Seems to me that CAAF didn’t receive the memo–or at least their grant of cert evinces a failure to receive or understand it. Certainly the Trial Judge got and understood that memo! But CAAF still has time to read it, digest it and amend their sexist ways. Their decision in the Woods case will reveal whether they have been appropriately “re-educated.

  2. k fischer says:

    Re: Woods
     
    I, as a member of the public, doubt the fairness of a trial where the Senior Panel Member is permitted to remain on the panel after expressing the necessity of the “guilty until proven innocent standard” to accomplish the military mission.  Does it sound like Woods stepped on his crank and didn’t understand the meaning of the word “No?”  Yes, it most certainly does based on the facts articulated in the NMCCA opinion.  However, this opinion is quite troubling regarding the mandate for challenges, which appears to be now much less liberal in Navy Courts-martial.
     
    Another lesson learned in sexual behavior:  Why would a man immediately go for the vagina of a sleeping woman with whom he has never had sexual relations?  You have to start, ideally, with talking, then when you can articulate why you thought you had the green light, moving in slowly for a kiss, and when it is clear that she is kissing you back, maybe a little ear nibbling, you move to kissing the nape of her neck, then her shoulder, all the while monitoring whether or not she is responding positively.  Once you get to her shoulder, you move her bra strap over her shoulder ever so slightly with your tongue or teeth, so that it falls to the side, and pause the advance to spend a little time kissing her from her shoulder back to her neck.  If she doesn’t want you to continue, she will say, “No.”  Then, you immediately stop.  If she really wanted you, then it will drive her nuts because she will think you aren’t attracted to her, and chances are she will be all over you at some point in the near future.  If she meant “No,” then you just saved yourself from a sexual assault charge by stopping immediately.  If she does want you to continue, chances are she will be taking her own bra off.  Perhaps, this should be a required block of instruction at every sexual assault stand down if we really want to change the behavior of men.

  3. AF JAG says:

    Just a factual question on the Woods case:  does anyone know why the defense counsel didn’t exercise his/her preemptory challenge on the panel member concerned?  Had they already used their pre-emptory challenge on another member?  Just curious.

  4. Neutron73 says:

    AF JAG
    Probably because the President of the panel was the one to sign off on defense counsel’s end of tour award!
    Just kidding.  Is an interesting question

  5. stewie says:

    I thought the rule now was you had to exercise your preemptory challenge on someone to even get a causal challenge heard on appeal?  If you leave it in your pocket, you haven’t preserved the issue for appeal.

  6. Charlie Gittins says:

    8 of 10 DC challenges were granted.  This tells me that the MJ was trying pretty hard to seat a panel and was willing to take someone whom he thought could be rehabilitated with leading questions.  I’d love to read the voir dire of the dismissed members.  They must have OD’d on the Kool-Aide to have been excused over the leading question rehabilitation gambit.  

  7. Zachary D Spilman says:

    Stewie

    failure by the challenging party to exercise a peremptory challenge against any member shall constitute waiver of further consideration of the challenge upon later review.

    R.C.M. 912(f)(4).

  8. Defense Hack says:

    We are seeing a growing evisceration of the concept challenging a panel member for implied bias, but why not, since we’ve basically killed UCI as well…

  9. Zachary D Spilman says:

    I don’t think that’s a fair statement, Defense Hack.

    So far this term CAAF has already heard oral argument in three cases with explicit implied bias issues: United States v. Castillo, No. 14-0457/AR (CAAFlog case page); United States v. Peters, No. 14-0289/AR (CAAFlog case page); and United States v. Akbar, No. 13-7001/AR (CAAFlog case page).

    Member bias is also at issue in United States v. McFadden, No. 12-0501/AF (CAAFlog case page).

    Finally, let’s not forget that actual and implied bias are just two different ways of talking about the same thing:

    Actual bias and implied bias are separate legal tests, not separate grounds for a challenge.

    United States v. Nash, 71 M.J. 83, 88 (C.A.A.F. 2012) (CAAFlog case page) (quoting United States v. Armstrong, 54 M.J. 51, 53 (C.A.A.F. 2000)). 

  10. stewie says:

    Well, DC won 8 out of 10 challenges so that doesn’t seem like evisceration to me. Now, maybe all of them were no-brainers, I don’t know. My experience is that defense usually wins challenges for cause.

  11. k fischer says:

    Stewie, 
     
    So, that seems to support what CG is saying above, that the MJ just wanted to get a panel seated.  We don’t know how many pre-trial excusals there were on the convening order, so what if CAPT MV was the fifth panel member?  Do we know how many members this GCM sat?  I’ve known MJ’s who will run three marathon twelve to fifteen hour days to ensure that the panel does not go into the four-day weekend on Memorial Day.  That doesn’t give the Accused’s counsel, a whole lot of time to sleep, let alone digest the day’s evidence in order to prepare for the next day.  
     
    That just doesn’t sound like justice to me, if what CG speculates could have happened actually happened.

  12. stewie says:

    I’m not commenting that this was the correct call by the MJ. I am unsure. On the one hand, on it’s face it’s extremely problematic.  OTOH, when you read the opinion, it seems to me that she came in with a mistaken belief, but seemed amenable to agreeing that belief was mistaken. Now, I don’t know how credible that is because I wasn’t there, but the MJ was.
     
    Having said that, you are absolutely right, the fact that this was potentially challenge for cause #9 gives weight to the argument that the MJ was just trying to get a panel seated. If she were #3, he might very well have applied the liberal grant mandate and gotten rid of her.  Of course, for all we know, she was the the first CC, it was denied, then he granted the next 8. I don’t know. Do we have evidence of where she fell numerically?
     
    Regardless, still doesn’t strike me as “evisceration.”

  13. charlie gittins says:

    Like I said, I’d like to read the voir dire of the entire panel.  The MJ used exclusively leading questions on the “rehabilitated” member.  In my experience, you can lead just about any member (except the dullest bulbs — whom I have actually voir dired and seen in action) to rehabilitation if you let the MJ or the TC use leading questions without objection.  Were the other members excused following similar leading question rehab or were they invited to, and allowed to speak their minds in an open ended narrative, which is where you find implied bias.  Get them talking, keep them talking using open ended questions.  I too would like to know where this member was in the challenge matrix. I suspect she was toward the end because I think she would have been gone if she were on the initial panel and gave that answer.   

  14. Defense Hack says:

    I suppose my last statement was a bit inartful….or too artful without enough explanation. My concern rests with this idea that, in my experience, Military Judges will bend over backwards to not bust a panel. This panel needs only a majority to convict. They come in to the room with a ton of biases, some good, some bad. In a civilian trial, you might have 300 potential jurors to get down to 12 (plus alternates) on serious cases. This allows you to get into the weeds on voir dire, without the baloney leading questions and rehabilitation. IMHO, I think the panels are smart enough to tell us what they think they want us to hear. I don’t see how one, defense or prosecution, can have faith in these panels.

  15. stewie says:

    Again, I think you are, respectfully, engaging in a bit of hyperbole. I think many MJ’s care about busting panels. They shouldn’t, quite frankly, but I agree it can be a consideration. I don’t agree that, generally, they “bend over backwards” to avoid that result, at least not in my experience.
     
    Busted panels happen. They aren’t unicorns.  They aren’t common occurrences either, but they happen.
     
    As for having faith in panels. I don’t have faith in juries either. Then again, I might not have faith in a single MJ depending on a certain area.  Instead, in each case you try to pick the fact-finder that gives you the best chance of success.  Depends on the MJ, panel (or jury) and it depends on the offense(s) charged. 
     
    I concur how we do voir dire is somewhat broken.  In part because MJ won’t allow a lot of questions, in part because we don’t have enough experience to allow MJs to feel comfortable allowing a lot of questions. I still go back to saying I think we end up with a higher quality of people (education and common sense-wise) on panels than your average civilian jury.

  16. k fischer says:

    I just realized that the panel member, CAPT MV, is not an O3, she is a Navy Captain, O6.  And her Husband who is Army Special Forces also has this “presumption” that the military UCMJ standard is “Guilty, until proven innocent.” I wonder how many Captain’s Mast hearings she has conducted because the presumption of innocence applies under Article 15, too, right?  It does in the Army (FM 27-1, Chapter 4)  How many Sailors went before her thinking they would get a fair shake and contest the charge at the hearing, but failed to overcome the presumption of Guilt by proving their innocence BARD?  I would imagine that her husband is also an Officer and I’d like to know his name for future challenges.
     
    And, I’m supposed to believe that an O6 who has minimally been in the Navy for 15 years and who for the first time heard that the same right to the presumption of innocence in the civilian world is not signed away when you swear an oath upon enlistment or commission is going to within 5 minutes switch all of her previous bias towards guilt and follow the instructions by an officer who is junior (O4) in rank to her???  
     
    C’mon.  I think “evisceration” is an acceptable description regarding this opinions effect on the “liberal” part of the mandate given to challenges.  If I just followed the language in this opinion, heck, I could rehabilitate Teresa Scalzo, if she were military sitting on a court martial panel.

  17. stewie says:

    Navy has preponderance at NJP, not BRD. It’s certainly possible, maybe probable, that her misunderstanding of how things work affected a lot of NJPs. That’s a failing of the JAGs that have advised her to not set her on the right path earlier. I agree her senior rank makes the whole mindset troubling. No, I don’t think this one opinion equals evisceration. I don’t think MJs are going to read this and go, well, I’ll never have to grant a challenge for cause again.

  18. k fischer says:

    Stewster,
     
    I’ll meet you at a little column A, a little column B…….

  19. anon81 says:

    You all realize she’s a dentist, right? I don’t know how it is in the Army, but the likelihood of her actually taking someone to NJP is extremely small, based on her dental corps background. Also, she wouldn’t have a JAG directly advising her – her ISIC, or their ISIC, would have the JAG, so minimal interaction.
    Also, the Judge is an O-5. No O-4 judges in the Navy. But regardless, there is such a thing as “positional authority.”