Last month CAAF ordered the Army Government Appellate Division to file a response to a Grostefon issue questioning whether a military judge should have recused himself (noted here). Last week the court ordered the Army CCA to consider the issue:

No. 19-0212/AR. U.S. v. Patrick B. Teer. CCA 20170601. On consideration of Appellant’s petition for grant of review of the decision of the United States Army Court of Criminal Appeals, Appellee’s motion to remand, and Appellant’s motion to supplement the record, it is ordered that said petition is granted on the following personally asserted issue:

WHETHER THE MILITARY JUDGE ERRED BY FAILING TO RECUSE HIMSELF BASED ON CIRCUMSTANCES THAT, IF KNOWN AT THE TIME OF APPELLANT’S COURT-MARTIAL, WOULD HAVE PROVIDED REASONS TO REASONABLY QUESTION HIS IMPARTIALITY.

That the motion to remand is granted, that the motion to supplement the record is denied without prejudice to raising the matter before the United States Army Court of Criminal Appeals, and the decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for a new review and consideration of the aforementioned issue under Article 66, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866 (2012). Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2012) shall apply.

CAAF also summarily affirmed in two cases that were trailers to United States v. McDonald, 78 M.J. 376 (C.A.A.F. Apr. 17, 2019) (CAAFlog case page), in which the court unanimously held that the mens rea (mental state) for the offense of sexual assault by causing bodily harm in violation of Article 120(b)(1)(B) (2012), where the bodily harm is a nonconsensual sexual act, is only the general intent to commit the sexual act:

No. 19-0051/AR. U.S. v. Korey B. Kangich. CCA 20170170. On consideration of the granted issue, 78 M.J. 304 (C.A.A.F. 2019), the judgment of the United States Army Court of Criminal Appeals, United States v. Kangich, No. 20170170 (A. Ct. Crim. App. Sep 27, 2018) (unpublished), and the opinion of this Court in United States v. McDonald, __ M.J. __ (C.A.A.F. Apr. 17, 2019), we conclude that because the affirmative defense of mistake of fact as to consent applies only if the mistake is reasonable as well as honestly held, the military judge did not err. Therefore, it is ordered that the judgment of the United States Army Court of Criminal Appeals is affirmed.

No. 19-0104/AR. U.S. v. Nicholas E. Davis. CCA 20160069. On consideration of the granted issue, __M.J. __ (C.A.A.F. 2019), the opinion of the United States Army Court of Criminal Appeals, United States v. Davis, No. 20160069 (A. Ct. Crim. App. Aug. 16, 2018) (unpublished), and the opinion of this Court in United States v. McDonald, __ M.J. __ (C.A.A.F. Apr. 17, 2019), we conclude that the military judge did not err in instructing the court members that for the affirmative defense of mistake of fact as to consent to apply, the mistake must have been reasonable as well as honestly held. Therefore, it is ordered that the judgment of the United States Army Court of Criminal Appeals is hereby affirmed.

Finally, CAAF summarily affirmed in this Navy case:

No. 18-0251/NA. U.S. v. Austin T. Greening. CCA 201700040. On further consideration of the granted issue, 78 M.J. 61 (C.A.A.F. 2018), and in view of Gamble v. United States, __ S. Ct. __ (2019), No. 17-646, 2019 U.S. LEXIS 4173, 2019 WL 2493923 (June 17, 2019), it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

We noted CAAF’s grant of review in Greening here, and SCOTUS’ grant of review in Gamble here. The SCOTUS docket page for Gamble is here.

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