CAAF granted review in four cases yesterday, three of which were previously discussed on this blog.

The first is Barker, in which the Air Force CCA found that the military judge improperly admitted two unsworn written victim-impact statements during sentencing, but that the error was harmless. I discussed the CCA’s published decision in this post. CAAF granted review of two issues challenging the admission of a third statement and the finding of harmlessness regarding the two improperly-admitted statements:

No. 17-0551/AF. U.S. v. Thomas E. Barker. CCA 39086. 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 issues:

I. WHETHER THE COURT OF CRIMINAL APPEALS ERRED WHEN IT HELD PROPER FOUNDATION HAD BEEN LAID TO ADMIT EVIDENCE IN AGGRAVATION.

II.WHETHER THE COURT OF CRIMINAL APPEALS IMPROPERLY CONDUCTED A REVIEW OF THE PREJUDICE RESULTING FROM THE MILITARY JUDGE’S ERRONEOUS ADMISSION OF EVIDENCE IN AGGRAVATION.

Briefs will be filed under Rule 25.

The second is Hardy, in which the Air Force CCA found that a guilty plea waives any unreasonable multiplication of charges. I discussed the CCA’s published decision in this post. CAAF granted review of the CCA’s finding of waiver:

No. 17-0553/AF. U.S. v. Ryan A. Hardy. CCA 38937. 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 AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY HOLDING THAT APPELLANT WAIVED, RATHER THAN FORFEITED, HIS CLAIM OF UNREASONABLE MULTIPLICATION OF CHARGES.

Briefs will be filed under Rule 25.

The third is Armstrong, which the Army CCA decided without an opinion (summarily):

No. 17-0556/AR. U.S. v. Joseph R. Armstrong. CCA 20150424. 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 ASSAULT CONSUMMATED BY A BATTERY IS A LESSER INCLUDED OFFENSE OF ABUSIVE SEXUAL CONTACT BY CAUSING BODILY HARM.

Briefs will be filed under Rule 25.

The fourth is Kelly, in which the Army CCA sitting en banc split 6-4 to conclude that it has no authority to set aside a mandatory minimum dismissal or dishonorable discharge for a sexual offense required by Article 56. I discussed the CCA’s opinion in this post (though I focused on a different issue). CAAF granted review of the CCA’s finding of no authority:

No. 17-0559/AR. U.S. v. Eric F. Kelly. CCA 20150725. 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 A COURT OF CRIMINAL APPEALS HAS THE AUTHORITY TO DISAPPROVE A MANDATORY MINIMUM PUNITIVE DISCHARGE.

Briefs will be filed under Rule 25.

Disclosure: I represent Kelly in my personal capacity.

19 Responses to “Four CAAF Grants: Evidence in aggravation, UMC in guilty pleas, LIOs, and a CCA’s power over mandatory minimums”

  1. Tami a/k/a Princess Leia says:

    Has anyone ever argued that the mandatory DD (or dismissal) is unconstitutional?  It punishes a servicemember for exercising his right to a trial.  A mandatory DD/dismissal is the worst possible punishment, next to the death penalty or LWOP.  Confinement can be a long time, but unlike a discharge, usually isn’t forever.  The only other time a DD/dismissal is mandatory is a sentence of death.

  2. K fischer says:

    Your Highness,
     
    How does a mandatory DD punish someone for exercising their right to a trial?  Are you talking about when the Government charges a 120 offense based on ridiculous facts against a Private then tells the DC that the GCMCA would approve a request for an OTH DILO?

  3. Tami a/k/a Princess Leia says:

    If the accused pleads guilty, then he can get a BCD.  But if he pleads not guilty and demands a trial, then if found guilty, he automatically gets a DD.  For officers, no choice whatsoever.  To call a DD/dismissal a “minimum” punishment is illusory, there is nothing “minimum” about a DD.  Like I said, it’s the worst possible punishment, next to confinement for LWOP or death.

  4. Dre says:

    just curious does a member on appellate leave whose findings and sentence has been set aside gets back paid if the member is recalled to active duty?

  5. Tami a/k/a Princess Leia says:

    Dre, under Article 75, UCMJ, if findings and sentence are set aside, the accused is fully restored to the position he was in before findings.  Yes, he would get back pay.

  6. eminem says:

    Tami, my understanding was that the DD was a mandatory consequence of 120 conviction, so even a guilty plea would trigger it.  Were you talking about pleading to a 128 instead of a 120, or am I missing something in the rules?

  7. Philip D. Cave says:

    If a case is set-aside on appeal, the accused is put back on active duty.  He/she is permitted to wear the rank held at the time of trial, but NOT paid for it.  They are paid at the rank to which previously sentenced.  It’s based on some old Comptroller General cases where DFAS says they can’t be paid until the retrial is over and adjustments made for any new sentence.  The amount of back pay depends on the new sentence.

  8. Zachary D Spilman says:

    Tami‘s answer about back pay is right, Dre, with a caveat: If the accused faces a rehearing, DFAS takes the position that no back pay is due until after the rehearing (and then the calculation is based on the result of the rehearing). Cf. Howell v. United States, 75 M.J. 386 (C.A.A.F. Jul. 19, 2016) (CAAFlog case page).

  9. stewie says:

    Yes, finance won’t pay. And courts will not force them to pay. So the practical answer is they get no pay until either the case is dismissed or the accused is found not guilty.
     
    I don’t think a DD is the “worst punishment except death or life in prison.” Ask almost any accused to choose between even say five years in prison but no DD or a DD and no jail time, and which do you think they will pick?
     
    Heck, sex offender registration is worse than a DD and it’s only “collateral.”

  10. Mortardello Sandwich says:

    Stewie, why do you say sex offender registration is so bad?  I get there are some restrictions involved and you probably aren’t allowed to hand out candy at Halloween, but what actual consequences of the registration are there?

  11. Tami a/k/a Princess Leia says:

    Eminem, at sentencing, there is an automatic DD BUT if there was a guilty plea to an Article 120 offense, then the convening authority is authorized to reduce to a BCD.  I would argue it’s coercive.  Of course, officers get no such break.
     
    Stewie, if you have a combat-wounded veteran as a client, if you were to ask them what their “preferences” were, jail time and no DD, or no jail time and a DD, I think you’ll find they’ll pick the jail time.  See also United States v. Mitchell, 58 M.J. 446 (C.A.A.F. 2003) (6 years and a DD is a harsher sentence than 10 years and a BCD).

  12. Retardello Sammich says:

    Actual Consequences of registration:
     
    1. Mugshot is on a national database with your home address, so vigilantes can come to your home and harass you with no adverse consequences because nobody cares about or wants to defend a sex offender.
    2.  Can live within so many miles of a school, church, or daycare.
    3.  Have to pay a filing fee every time you move, for instance in Alabama $200, which cannot be waived for low income. Doesn’t sound like much money, but it’s difficult to come up with $200 when you can’t get a job.
    4.  Good luck trying to find an low cost apartment to rent when every apartment complex is afraid that they will be sued by Morgan and Morgan for renting to a sex offender.
    5.  Good luck trying to find a job when employers are concerned that they will be sued by Morgan and Morgan for hiring a sex offender.
    6.  Good luck getting a college degree, so you can be qualified for a job you’ll never get, because colleges are worried that they be sued by Morgan and Morgan for accepting a sex offender as a student.
     
    Handing out candy at Halloween?  No, sex offenders can still do that, but chances are the kiddos aren’t trick-or-treating under the bridge or out at the tent city in the woods west of town.   

  13. Retardello Sammich says:

    One more thing:  #1 only applies if you are a male.

  14. Slowplay says:

    Retard,
    Most sex offenders re-integrate into society without issue from what I’ve heard.  What you said is a slap in the face to the homeless.

  15. AF Capt says:

    Suggested reading for Slowplay:
    https://www.nytimes.com/2014/08/22/nyregion/with-new-limits-on-where-they-can-go-sex-offenders-are-held-after-serving-sentences.html
    http://www.npr.org/2014/10/23/358354377/aclu-challenges-miami-law-on-behalf-of-homeless-sex-offenders
    http://kfor.com/2013/01/08/honing-in-on-homeless-sex-offenders/

  16. Slowplay says:

    But Retard AF Capt, aren’t those articles about a small subset of sex offenders?  The truth is, there’s plenty working in the cubicles next to you and others…

  17. AF Capt says:

    Ah, you are truly a class act there Slowplay.  However, there are none in the cubicles next to me… if for no other reason than conviction of a sexual offense will generally cause you to be prohibited from entering an Air Force installation.  See e.g. JBERI 31-113, Table 3.

  18. Slowplay says:

    AF Capt, no need to question my class.  I thought we were simply having a discussion here.  Good day, sir.

  19. stewie says:

    I think it would depend on the time in jail Tami. What if it’s 30-40 years?
     
    Sure, 4 years might make a difference, but you said it was the worst next to life and the DP. That’s what I’m challenging.