This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court, where I’m tracking two cases:

This week at CAAF: CAAF has completed its oral argument calendar for the term. Details about this term’s cases are available on our 2015 Term of Court page.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, August 3, 2016, at 10 a.m.:

United States v. Ahern, No. 20130822

Issues:
I. [WHETHER] IT WAS PLAIN ERROR WHEN THE MILITARY JUDGE ALLOWED TRIAL COUNSEL TO ARGUE THAT APPELLANT FAILED TO DENY SEVERAL PRETRIAL ALLEGATIONS “BECAUSE HE WAS GUILTY.”

II. [WHETHER] IT WAS PLAIN ERROR WHEN THE MILITARY JUDGE PERMITTED TRIAL COUNSEL TO ARGUE THAT APPELLANT’S CONSULTATION WITH A CRIMINAL DEFENSE ATTORNEY WAS INDICATIVE OF HIS GUILT.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on August 18, 2016.

This week at the CGCCA: The Coast Guard CCA’s oral argument schedule shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

24 Responses to “This Week in Military Justice – July 31, 2016”

  1. Vulture says:

    Re. Ahern.
    What Judge allowed that?

  2. k fischer says:

    What defense counsel failed to object to that?

  3. Charlie Gittins says:

    Yikes.  This is some incredibly bad lawyering.  

  4. Ed says:

    Could you if  possible post the briefs concerning this case.

  5. Alfonso Decimo says:

    Recommend we add one practical exercise to the Military Judge Course in Charlottesville. Our trial notebooks are open to a page listing all the objections to closing arguments. Government Trial Counsel argues, Defense Counsel does not object, and the Military Judge stops TC sua sponte and invites DC to recommend curative instructions. This should be followed by written findings for the record.

  6. k fischer says:

    Ed’s right.  If there is one thing I learned, you can’t really know about the case by reading the framed issue, or sometimes even the opinion, unless you have read the record of trial or briefs.

  7. Vulture says:

    Please, if that is possible.

  8. Philip Cave says:

    When did he make the statements, denials, or failures?  That could be important.
     
    If this were a federal civilian case I could go on PACER, find the case, and get the briefs (unless sealed), and if I wanted to spend 10 cents a page I could download.

  9. stewie says:

    While odds are things don’t look good in Ahern, I concur we can’t tell for sure from just the Issue.

  10. Zachary D Spilman says:

    The briefs in Ahern are available at the following links:

    • Appellant’s brief

    • Government brief

    • Appellant’s reply brief

  11. Burt Macklin says:

    From Appellant’s brief:  “The panel sentenced LTC Ahern to be confined for seventeen years and six months and to be dishonorably discharged. ”
     
    Real strong start there.

  12. Ed says:

    Ahern would be the first LTC discharged rather than dismissed. Fascinating.

  13. k fischer says:

    After reading the briefs of both parties I cannot say that I have a firm conviction that the accused is guilty beyond a reasonable doubt.  However, that is not the issue that will be argued.
     
    Initially, I found the Government’s reply regarding the TC’s use of Appellant’s failure to deny persuasive since they actually cited much case law that purports to support their position.  But, after reading Cook, it does not appear to support the position taken by the Government. 
     
    Ahern was under an investigation by the civilian authorities when he failed to deny the allegation.  I think any inference taken to interpret MRE 304’s language “the person was under official investigation” should not be to add the words “and the person knew that he was being investigated.”  There is no knowledge component to 304(h)(3).  And, there is no definition to the term “Official Investigation.”  The fact that this term is not limited to investigations by “any person subject to the Code,” as in Article 31 would seem to indicate a broad definition to include civilian law enforcement investigations.
     
    Moreover, Ahern sought legal counsel, which CAAF in Cook thought was relevant enough to add to the opinion.  So, if his silence is inadmissible under 304, then it is irrelevant under 402, and sounds like it would be highly prejudicial under the same reasoning in Cook.
     
    What I have learned from this is that if a client calls my office upon learning this his vindictive spouse went to FAP and falsely accused him of a physical or sexual assault, then is ordered to go to FAP and says that he does not want to discuss the statement, then the SVP might could call the counselor as a witness to discuss his failure to deny the accusation at his court-martial. Or, if a potential accused catches wind that a false allegation has been made against him by a female who then proceeds to make a pretext phone call or e-mail, then he better dang well deny the allegation because otherwise his silence will be used against him.

  14. k fischer says:

    And, I take back my question about defense counsel.  I think an objection and corrective instruction might have only drawn more attention to the TC’s improper argument, and I imagine that the TC knew it.  It’s a win-win.  He either gets to make an improper argument cleanly without objection, or DC objects and the Judge tells the panel in a weak way (depending on the Judge) something like this:
    Panel members, I order you to disregard the TC’s argument that the Accused is guilty because he failed to deny his wife and the VICTIM’s allegations that he molested the VICTIM.  His failure to deny the allegation by his wife and the VICTIM that he sexual abused the VICTIM in this case has no bearing on his guilt.  To put it another way, your finding that the Accused is in fact guilty of sexually abusing the VICTIM in this case should rest solely on the admissible evidence you have heard, and should not be based on the argument that his failure to immediately deny the allegation of sexual assault when posited by his wife and the VICTIM means he is guilty.”
     
     

  15. Alfonso Decimo says:

    The MJ should add to his instructions, “when the term ‘victim’ is used, including by myself, you are to understand the participants in this court-martial mean ‘alleged victim’ since …” (etc.)

  16. Joseph Wilkinson says:

    And when amid the VICTIM’s shrieks
    The ruffianly Defendant speaks
    Upon the other side —
    What he may say, you needn’t mind…
    From bias free of ev’ry kind,
    This trial must be tried!
     
    (If you don’t recognize it, start at 1:50 here.)

  17. k fischer says:

    Joseph,
     
    Perhaps I’m an uncultured Cretan, but I had to close that video so I could chew on some tinfoil instead, although I did watch up to your quote.  This clip from Pirates of Penzance is far more melodic, entertaining, and informative of what is going on in an E-3’s mind.  Oh how I love Gilbert & Sullivan.

  18. Joseph Wilkinson says:

    I think it’s the fellows from Philistia rather than Crete who are supposed to be uncultured.   It’s an old favorite of mine and I’m sorry you didn’t like it.

  19. k fischer says:

    You’re sorry?  Bro, I’m a moron who quotes 80’s movies, so no need for you to be sorry.  I found it to be a bit pitchy, but I will gladly give it a second go.
     
    The ruffianly Defendant speaks Upon the other side —What he may say, you needn’t mind…
     
    I like that quote, as this is the tact taken by one SVP in particular who interrupted my opening statement with an objection that there was no evidence to support what I was saying at that moment.  I was thinking to myself while the judge told the panel that opening statements are not evidence, “Ummmmmmm, does my client’s written statement at the 32 count as evidence, there, Tough Guy?  Or are you just presuming he is lying?”

  20. Alfonso Decimo says:

    k fisher means cretin, rather than Cretan.

  21. Joseph Wilkinson says:

    KF – You might like a d’Oyly Carte production better if you can find one…their filmed version was good but they coupled it with another of Sir Arthur’s pieces (which they made into an incredibly long introduction, showing what all the characters are doing the morning of trial).    If I remember that’s the one that got them together (it was written as a curtain-raiser for La Perichole).
     
    AD – But it was funnier my way, given the double meaning of the word “Philistine.”

  22. Alfonso Decimo says:

    JW – Yes. It was funnier.

  23. k fischer says:

    Both you guys are wrong. I was referring to the late architect Paul Cret (pronounced “Cray”) whose buildings were less than exciting, much like this play JW quoted.
     
    Okay, okay, you got me.  I mistook “Cretin” for “Cretan,” which means I am truly a cretin who has never been to Crete.

  24. Joseph Wilkinson says:

    That’s okay.  I do implicit 80’s movie quotes, and who could sink lower than that?