In United States v. Caldwell, No. 16-0091/AR (CAAFlog case page), CAAF is considering whether the military judge committed plain error when he instructed the panel using a negligence standard for maltreatment of a subordinate in violation of Article 93. The case is one of a handful this term that rely on the Supreme Court’s recent decision in Elonis v. United States, 135 S. Ct. 2001 (2015), to argue that the offense does not require a sufficiently culpable mens rea (mental state).
CAAF already decided two such cases: United States v. Gifford, 75 M.J. 140 (C.A.A.F. Mar. 8, 2016) (CAAFlog case page) (applying Elonis to conclude that the appellant must have acted with at least reckless disregard for the true age of the minors to whom he provided alcohol in order to be convicted of violating an order prohibiting such action), and United States v. Rapert, 75 M.J. 164 (C.A.A.F. Mar. 18, 2016) (CAAFlog case page) (holding that the element of wrongfulness in the Article 134 offense of communicating a threat, as specified by the President, requires adequate proof of an accused’s mens rea). In addition to Caldwell, I’m tracking one other such case (Goffe).
Yesterday the court granted review in a Caldwell trailer:
No. 16-0357/AR. U.S. v. Derick D. Granderson. CCA 20140178. 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 MILITARY JUDGE ERRONEOUSLY USED A NEGLIGENCE STANDARD TO FIND APPELLANT GUILTY OF MALTREATMENT UNDER ARTICLE 93, UCMJ.
No briefs will be filed under Rule 25.