This week at SCOTUS: A new petition for certiorari was filed on August 21 in Camacho v. United States, No. 19-243. In May, CAAF summarily affirmed the Army CCA’s decision in the case (available here) that rejected claims of unlawful command influence based on the Army’s Sexual Harassment/Assault Response and Prevention (SHARP) program. The petition presents five questions:

I. Whether the Army’s Sexual Harassment Assault Response and Prevention Program (SHARP) reversed the constitutional presumption of innocence, diluted the “guilty beyond a reasonable doubt” standard of proof in criminal prosecutions, violated Fundamental Due Process, and disregarded the Sixth Amendment’s guaranty of a full and fair trial.

II. Whether the trial court, conditioned by the SHARP program’s reversal of the presumption of innocence, deprived Petitioner of his Constitutional Right to Fundamental Due Process where it allowed 13 instances of serious prosecutorial misconduct, to include making material misrepresentations in open court about digital images with which the prosecution tampered and on which the prosecution relied at trial, which further deprived Petitioner of the ability to put on a complete defense.

III. Whether the trial court, influenced by the SHARP program’s degradation of the presumption of innocence, wrongly admitted an unsigned, undated, typed copy of an “apology” letter introduced as uncharged misconduct to prove Petitioner may have assaulted his spouse and the purported victim a decade earlier, and hearsay testimony of her mother describing a graphic and degrading sexual assault of her daughter, which she did not witness.

IV. Whether the Army Court, predisposed to affirming guilt due to the SHARP program, misapplied its 10 U.S.C. § 866 plenary de novo jurisdiction when it declined to weigh the credibility of the complaining witness, where the record was replete with indications of her lack of candor and untrustworthiness, in violation of this Court’s precedent in Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (standard for sufficiency of evidence to support conviction).

V. Whether the Army Court, oriented to affirming guilt due to the SHARP program, failed to follow Sixth Amendment Supreme Court precedent when it declined to factor into its ineffective assistance of counsel analysis the trial judge’s having found 12 instances where trial defense counsel did not exercise reasonable due diligence to uncover and develop exonerating and mitigating evidence.

Additionally, the Court granted an extension of time to file a cert. petition in McDonald v. United States (CAAFlog case page). I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking six cases:

This week at CAAF: CAAF completed its oral argument schedule for the current term. The first argument of the 2019 term is scheduled for October 16, 2019, at the J. Reuben Clark Law School, Brigham Young University, Provo, Utah.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on September 10, 2019. The argument will be held at the New Mexico Court of Appeals.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on September 30, 2019.

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

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

19 Responses to “This Week in Military Justice – August 25, 2019”

  1. stewie says:

    The mentions of the SHARP program in this SC appeal add what exactly?

  2. Vulture says:

    Out of a petition with 8,741 words, 36 instances of “SHARP” add .41 percent.

  3. stewie says:

    so, not much then.

  4. Joseph Wilkinson says:

    It adds the first issue by itself.  It also adds a point of persuasion.  It gives a motive.  If you’re going to accuse an Army court-martial and the Army Court of Criminal Appeals of having an improper bias, even of ignoring or reversing the burden of proof…it’s a good idea to provide a plausible motive for the bias.  Just as you’d want if you’re defending against a false accusation.  It’s easier to persuade of a “what” if you have a “why.”

  5. stewie says:

    A motive? First of all, a motive is not an assignment of error. Second, this is a combination domestic violence and sex assault case. Explain to me how SHARP resulted in the convictions based on the DV stuff? Third, the motive doesn’t matter, either the trial was conducted properly or it wasn’t. Either there is error or there wasn’t. If there wasn’t, SHARP doesn’t matter. If there was, SHARP doesn’t matter. His case doesn’t get more overturned because of SHARP vice some other “motive” or not motive at all but simply error or incompetence.
    Provides the basis for the first issue? Yes, I suppose it does. Of course, how that ties to the appellant’s case isn’t clear in the assignment of error seeing as how it’s a generalized criticism of the entire SHARP program as it, somehow, applies to the burden of proof.
    “Conditioned by” “influenced by” “predisposed to” “oriented to” the SHARP program? So, I take it that SHARP wasn’t even mentioned in the case at all judging by the complete lack of any direct links between the two.
    None of the SHARP additions add a single thing to the credibility of the assignments of error, or in any way assist a court in deciding whether AEs II-V have merit or not. And no, it’s not a “plausible” motive. What happens in all of those cases where the Court(s) do overturn for various reasons or send back for rehearings? Did those judges momentarily shake off the effects of SHARP? (Only to sadly succumb again to its nefarious effects soon thereafter no doubt).
    I’m sorry but it’s not serious, and it adds nothing substantive, and that’s the nicest thing I can say about it.

  6. Vulture says:

    284 words, 7 of which are “SHARP.”  2.5 percent.
    Do you have a point to make by mentioning the word “SHARP” or not?

  7. stewie says:

    Swing and a miss at a clever retort Vulture…but we do have a home edition of the game for playing, along with a year’s supply of Rice a Roni.

  8. Joseph Wilkinson says:

    First of all, a motive is not an assignment of error….Third, the motive doesn’t matter.
    Sure it does, at minimum as a good point of persuasion.  A judge gives a legally correct instruction about the burden of proof out of the Benchbook.  The appellate courts are strongly inclined to say, “We presume that the panel followed the correct instruction and applied proof beyond reasonable doubt; and all your other errors are harmless.”  How to persuade them otherwise?  In this case, by showing the panel members (and the Army judges as well) are being systematically indoctrinated to believe in a presumption of guilt before they ever got to court.  So the motive does matter–indeed, it’s of central importance, if they don’t want to be shrugged off. 
    It might also make the case more interesting for the Supreme Court…given how few cases the Court takes at all…if it’s illustrating a larger, systematic problem in the Armed Forces, rather than everyday issues of prior bad acts/authentication of evidence/ineffective assistance.  
    What happens in all of those cases where the Court(s) do overturn for various reasons or send back for rehearings? 
    If bias were an all-or-nothing, every-case-or-no-case kind of thing, that’d be a great point for the Government.  And for all I know they’ll argue it.  But in the end, even if you disbelieve the SHARP argument yourself, it makes a lot of sense for the petitioners to make it. 

  9. Vulture says:

    No sir.
    Baseball statistics are exceedingly complicated and I wouldn’t aspire to make a entry into that realm.  But I do know that there are 3 strikes and 4 balls.  So at best you have thrown at the batter.  

  10. Nathan Freeburg says:

    The better way to talk about it would be as Structural UCI within the MJ system.  And there’s loads of evidence of that.  The problem is how to show that Structural UCI poisoned the specific case you are appealing.  

  11. Dew_Process says:

    See SCOTUS Rule 10, which states in relevant part:

    A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual fndings or the misapplication of a properly stated rule of law.

    So it’s dubious that a cert petition this convoluted is going anywhere.

  12. stewie says:

    lol and you show that based on this record how exactly? How do you show that these members were so affected by the SHARP program that the BRD standard had become “diluted?” I sure don’t see anything involving voir dire in the AEs. I don’t see any statements from any of these folks showing that. I don’t see anything specific to this case other than “we didn’t like the verdict” and “we think the judge got some stuff wrong.” So yeah, they indeed are probably going to be “Shrugged off” as to the SHARP argument. This is a generalized argument that SHARP is pervasive and ruins everything. It has to be because there’s no specifics.
    Which of course, is clearly NOT the case because some sex assault cases do get overturned, sent back, and found factually or legally insufficient. So that argument dies on the vine.
    Which brings us to your second point, aka the have your cake and eat it too argument. They want to argue that bias isn’t an all or nothing thing (thus it’s specific to this case), but then they want to argue that bias has permeated the entire system? Yeah no, pick one. Either SHARP is so bad and pernicious that it’s pervaded the entire system (which appears to be the argument here and apparently not based on anything other than SHARP = bad). OR you come up with specific instances/evidence that these particular panel members and judge was so affected by SHARP as to render the BRD standard diluted and their rulings wrong.
    As to most of the AEs listed, either the alleged issues happened or they didn’t. Either the court was correct in allowing in the listed instances of prosecutorial conduct or it was not. If it was, who cares if SHARP is bad? The rulings were correct. If they didn’t, who cares if SHARP is bad? The rulings were incorrect and the conduct was not permissible. Each introduction of the SHARP language adds nothing more than a verbal tic…an introduction of “magic words” that somehow is supposed to do…something. At the very least, show how this panel and this judge, specifically, were affected by SHARP to such an extent as to make the trial a sham.
    Nothing in the AEs suggests that’s going to happen either.

  13. stewie says:

    And if you are going to try this route, you better either have some good outside of court evidence, or, more likely, have done a strong job of setting this up in voir dire. Getting out the effect of the SHARP program on the panel. Voir dire of the military judge as well as to their attendance at and belief in the SHARP program. You better make an objection to each panel member as too tainted by the SHARP program to sit, with specific reasoning for each one.
    You do all of that ground work (or otherwise possess strong specific evidence)  then I won’t say anything about making this argument on appeal. There are too many acquittals, too many low sentences, too many overturns, and remands, to make a broad, systematic argument alone.

  14. Vulture says:

    It doesn’t matter.  Kristina Gillabrand ended her presidential run yesterday.  All these problems will be over in couple weeks.

  15. stewie says:

    Looks like that Judge was biased by SHARP to me.

  16. J.M. says:

    You jest. But a Major General who orders his unit not to comply with subpoenas, in the name of SHARP, is most certainly a big problem. 
    Fortunately, Sgt Snyder had a COL who had the moral courage and strength of character to stand up to a Major General. I’m sure the judge will have a nice retirement party thrown for him soon. 

  17. Vulture says:

    I got nothin.

  18. stewie says:

    J.M. of course. This was a specific example of bias, and if the MJ hadn’t done their job then this very would have been a situation where SHARP had specific relevance.