Argument Preview: Are the service Courts of Criminal Appeals required to affirm the mandatory minimum punitive discharge for sexual assault offenses? CAAF will decide in United States v. KellyBy
A court-martial panel with enlisted representation convicted Sergeant Kelly, contrary to his pleas, of sexually assaulting a fellow noncommissioned officer who had become inebriated in his home after a night of drinking and playing board games. The members sentenced Sergeant Kelly to a dishonorable discharge, confinement for a year, total forfeitures of pay and allowances, and reduction to the lowest enlisted grade. That sentence was adjudged after the military trial judge instructed the panel that a dishonorable discharge was a mandatory punishment for Sergeant Kelly’s offense.
Before the Army Court, among other errors, Kelly asserted that the prosecutor’s argument (asserting that his in-court testimony was false) was improper, and that his sentence to a dishonorable discharge was inappropriately severe. In a published decision, the Army Court found that defense counsel’s failure to object to the prosecutor’s argument waived (rather than forfeited) that issue. As to Kelly’s request that his punitive discharge be set aside, the court held that it lacked the authority to even consider disturbing the mandatory minimum punitive discharge in a sexual assault case. United States v. Kelly, 76 M.J. 793 (A.C.C.A. 2017) (discussed here and discussed here).
From this background, on 22 March 2018 at 9:30 a.m., CAAF will hear oral argument on two issues. The first issue was raised by Kelly in the supplement to his petition for grant of review (discussed here):
Whether the Court of Criminal Appeals has the authority to disapprove a mandatory minimum punitive discharge.
In light of this Court’s decisions in United States v. Sewell, 76 M.J. 14 (C.A.A.F. 2017) [CAAFLog case page] and United States v. Pabelona, 76 M.J. 9 (C.A.A.F. 2017) [CAAFlog case page] did the lower court err when it determined the standard of review was waived when there was no objection to improper argument?