CAAF granted review in two cases on Tuesday. First, a Navy case:

No. 18-0251/NA. U.S. v. Austin T. Greening. CCA 201700040. 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 PROSECUTION OF APPELLANT VIOLATED THE FIFTH AMENDMENT’S DOUBLE JEOPARDY PROHIBITION.

No briefs will be filed under Rule 25.

The Navy-Marine Corps CCA opinion is available here. The due process issue is based on the fact that the appellant was held for possible trial past the end of his enlistment, without notice, for 300 days. The CCA rejected the argument that the lack of notice severed jurisdiction, holding that:

The appellant’s argument is based upon a faulty premise. . . . even if the appellant had received notice that he was being retained on active duty involuntarily from the outset, and assuming he objected to his continued retention, he still would not have been discharged and personal jurisdiction would have continued. Moreover, the appellant cites no authority for the proposition that failing to properly notify a service member that he or she is being retained on active duty against their will amounts to a deprivation of constitutional due process that severs jurisdiction.

Slip op. at 8 (internal citation omitted).

Correction. The double jeopardy issue seems to be based on a successive prosecution. In 2015 the appellant pleaded guilty to involuntary manslaughter in the Commonwealth of Virginia and was sentenced to confinement for three years (with all but six months suspended). He was then prosecuted for the same offense by the military, pleaded guilty to involuntary manslaughter and obstruction of justice at a general court-martial, and received an approved sentence of confinement for 39 months, reduction to E-1, and a dishonorable discharge.

Those facts suggest that this case involves the separate sovereigns doctrine and that this case is a Gamble trailer (noted here).

Second, an Army case:

No. 18-0267/AR. U.S. v. Jason A. Kohlbek. CCA 20160427. 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 ERRED BY MISCONSTRUING MIL.R.EVID. 707 AND PROHIBITING APPELLANT FROM PRESENTING EVIDENCE RELEVANT TO APPELLANT’S POST-POLYGRAPH STATEMENT.

Briefs will be filed under Rule 25.

The Army CCA opinion is available here. The CCA explained that:

Appellant argues that the military judge erred in prohibiting him from telling the court-martial that his admissions were made after being subjected to a polygraph and being told his answers were deceptive. As Mil. R. Evid. 707 clearly prohibits this information, appellant argues that the rule is unconstitutional, at least as applied to his case. Appellant argues that being deprived of this information misled the factfinder about the circumstances under which he confessed.

Slip op. at 6. The court found no error, concluding that “Appellant testified at the suppression motion that he confessed because he wanted to end the interview as soon as possible. . . . appellant’s stated explanation for confessing, (wanting to end the interrogation), did not require disclosure of the polygraph testing.” Slip op. at 7.

14 Responses to “Two new CAAF grants”

  1. Vulture says:

    Reading Greening and the commentary over being voluntold that he was signing a statement extending his active duty is akin to that “ratification” argument in Christensen.  Navy is only putting these cases forward to cover their asses in the future because he pled out and CAAF is on a HBRD tear. 

  2. Wait. What? says:

    In reviewing Greening, this looks like a JAGMAN 0124 challenge, not a regular due process challenge.

  3. Nathan Freeburg says:

    I really don’t understand why every military service is Hell-bent on maximizing jurisdiction. 

  4. Anonymous says:

    Because it shows the “Commander Career Killers” in the Senate like Gillibrand and McCaskill that they’re being “tough” on criminal activity.

  5. Vulture says:

    Training, Ranges, and Ammunition.
     
    IOW-target practice.

  6. stewie says:

    Need a little more nuance on polys, the defense should be able to acknowledge it in a case like this.

  7. Abe Froman says:

    I agree with Stewie: 304 allows the defense to introduce evidence attacking the weight that should be  given to an accused’s statement. If the defense wants to open the door to go after the voluntariness, they should be allowed to…with some clear left and right lanes.  

  8. kf says:

    Virtually, the only way I would want information about a polygraph in is if my client passed and the polygrapher lied and said that my client’s answers showed deception or, maybe, was inconclusive.  Also, it depends on the strength of the “confession,” since I have grown to believe that a “confession” is merely a social construct manifested through legal interpretations by non-lawyer military law enforcement agents who have been trained, using my money as a taxpayer, to disregard their own common sense and the way things work in the world in order prevent a victim (another social construct) from being further traumatized.
     
    But, if an accused shows deception during questioning, is confronted by the polygrapher with an indication of deception, then says “I lied and I actually did what I said that I didn’t do,” why on earth would a defense counsel want to get that evidence about taking a polygraph before the factfinder?   I can’t tell which it is reading between the lines in this certified question.

  9. stewie says:

    kf, I am assuming there is a confession here. So, you need to explain that confession away if you are the defense. I assume that’s what was going on here. That they were sure losers if the confession stayed unimpeached, so they needed something to impeach it.

  10. Abe Froman says:

    And, that impeachment of the poly can be pretty strong.  Most LE orgs don’t record the pre-poly interview or the actual interview….some don’t even record the post-poly “we REALLY know what you did now” interview.  So, if the accused has maintained innocence throughout the regular stages of the recorded interviews, and it isn’t until he emerges from a 3-6 hour mysterious interview with a specially trained interrogator that they now say he confessed, well, that seems to get to the heart of MRE 304(g).   how far the defense gets to go down the poly rabbit hole is a matter of the MJ’s discretion…and, I’ll guess we will see if CAAF thinks the MJ abused that discretion.

  11. Charlie Gittins says:

    I had one of these post-poly “confessions” at Shaw AFB.  The interrogation/poly took 8 hours.  The polygrapher was a very manly woman who had a crewcut and was just scary looking with a scary disposition.  My client “confessed” at the very end and wouldn’t write anything down.  He maintained his innocence throughout the interview until the very end.  He did not testify, by the polygrapher admitted that my client asked to leave several times and maintained up until the “confession” that the sex was consensual.  My successful argument on the confession was that he had been brow beaten for 8 hours and would have said anything to get away from the scary looking/sounding agent.  11 hour deliberation with an acquittal on a single count rape.  The word “polygraph” was never uttered during any testimony, much to the chagrin of the TC.
     

  12. TC says:

    A manly woman with a crewcut?  And the judge didn’t toss the confession sua sponte?  What a government hack.

  13. stewie says:

    Charlie has every episode of Gunsmoke on his reel to reel in the basement.

  14. Alfonso Decimo says:

    Charlie – I watched and admired your litigation skills on several occasions. My personal favorite was when the Government would say, “if the Defense would only stipulate” (or something like that) and you would respond (predictably), “the Defense does not stipulate, concede, yield, or admit; the Government must prove it’s case!” (or something like that). Very entertaining and effective! – AlX

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