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Scholarship Saturday: A gripe with unsworn statements

Well son you got a statement you’d like to make

Before the bailiff comes to forever take you away

Now judge judge I had debts no honest man could pay

The bank was holdin’ my mortgage and they was takin’ my house away

Now I ain’t sayin’ that makes me an innocent man

But it was more ‘n all this that put that gun in my hand

Well your honor I do believe I’d do better off dead

And if you can take a man’s life for the thoughts that’s in his head

Then won’t you sit back in that chair and think it over judge one more time

Let em’ shave off my hair and put me on the execution line

Bruce Springsteen, Johnny 99, on NEBRASKA (Columbia Records 1982)

The most recent publication of the Air Force Law Review contains an article delving into the propriety of allowing convicted servicemembers to make unsworn statements before sentencing in trials by court-martial. The article is by Air Force Major John S. Reid and is entitled “Undoing the Unsworn: The Unsworn Statement’s History and a Way Forward,” 79 A.F. L. Rev. 121 (2018).

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2017 Term End o’ Term Stats

It’s time again for our annual tradition of end-of-term number crunching.

 

Part I: Overview

CAAF heard oral argument in 36 cases in the 2017 term, resulting in 34 authored opinions of the court and 2 summary dispositions. The court also issued one per curiam decision without hearing oral argument (dismissing the writ-appeal petition in Gray). Summaries of each case, with links to CAAFlog case pages, are on the October 2017 Term page.

That number of oral arguments is about average for the court over the past decade. It’s a significant decrease from the 42 arguments heard last term, but a significant increase from the 28 arguments heard the term before.

CAAF also had a very moderate summary disposition docket. By my count the court issued summary dispositions in 32 cases – a number that is about average (and includes the two summary dispositions in argued cases: Gonzalez-Gomez and Burris).

Of the 34 authored opinions of the court:

  • Chief Judge Stucky wrote 9.
  • Judge Ohlson wrote 9.
  • Judge Ryan wrote 7.
  • Judge Sparks wrote 6.
  • Judge Maggs wrote 3.

Judge Maggs joined the court in the middle of the term, allowing him to participate in only 11 of the 34 authored opinions. Senior Judges Effron, Cox, and Erdmann all participated in cases heard this term prior to Judge Maggs joining the court. None authored a lead opinion, but Senior Judge Effron authored a concurring opinion in 1 case (Robinson (AR)) and a dissenting opinion in 1 case (Eppes), and Senior Judge Cox authored a dissenting opinion in 1 case (Jacobsen).

The 36 cases heard at oral argument break down by service as follows:

  • Air Force: 14 (39%).
  • Army: 16 (44%).
  • Coast Guard: 3 (8%).
  • Navy: 2 (6%).
  • Marine Corps: 1 (3%).

I score the Government divisions as the winner in 21 of the 36 cases heard at oral argument. Those wins, however, include Bailey (where CAAF remanded for a new review of the sentence), Simpson (where CAAF answered the certified question in the negative but found other reasons to affirm the CCA’s decision in part), and Hennis (where CAAF heard oral argument on – and found it lacks authority to grant – a defense motion for resources).

 

Part II: Dissents

Of the 34 authored opinions of the term, 22 were unanimous (no separate opinions). The Government divisions prevailed in 14 (64%) of those 22 unanimous opinions.

An additional 3 cases involved only separate concurring opinions, for a total of 25 authored opinions with no dissents (74% of the total of 34 authored opinions). The Government divisions prevailed in 16 (64%) of those 25.

The other 9 authored decisions produced a total of 9 separate dissenting opinions. Broken down by judge:

  • Chief Judge Stucky dissented 3 times and wrote 3 dissenting opinions.
  • Judge Ryan dissented 2 times and wrote 1 dissenting opinion.
  • Judge Ohlson dissented 3 times and wrote 3 dissenting opinions.
  • Judge Sparks dissented 1 time but did not write separately.
  • Senior Judge Effron dissented 1 time and wrote 1 dissenting opinion.
  • Senior Judge Cox dissented 1 time and wrote 1 dissenting opinion.

6 cases drew just 1 dissenting vote (Jacobsen, Harpole, Robinson (AF), Eppes, Barker, and Hardy), and 3 cases drew 2 dissenting votes (Short, Jerkins, and Barry). The dissenting opinion in Barry, however, is a little unusual. Authored by Judge Ryan and joined by Judge Maggs, the opinion is styled as a dissent but agrees with the majority that the conviction must be reversed. Accordingly, it gets special attention in the remainder of these stats.

The dissenters slightly favored the Government divisions. There were a total of 11 dissenting votes in the 9 cases with dissents. The Government divisions got 6 of those 11 votes, as follows:

  • Chief Judge Stucky dissented 3 times, siding with the Government division in 2 of the 3.
  • Judge Ryan dissented 2 times, siding with the defense in both.
  • Judge Ohlson dissented 3 times, siding with the Government division in 2 of the 3.
  • Judge Sparks dissented 1 time, siding with the Government division.
  • Senior Judge Effron dissented 1 time, siding with the Government division.
  • Senior Judge Cox dissented 1 time, siding with the defense.

Another interesting statistic is the comparison of who wrote for the court compared with when there were dissents. In order of least-dissenters to most:

  • Judge Sparks wrote for the court in 6 cases, drawing 1 dissent (and 1 concurring opinion).
  • Judge Maggs wrote for the court in 3 cases, drawing 1 dissent (and 2 concurring opinions).
  • Judge Ryan wrote for the court in 7 cases, drawing 2 dissents.
  • Judge Ohlson wrote for the court in 9 cases, drawing 2 dissents (and 2 concurring opinions)
  • Chief Judge Stucky wrote for the court in 9 cases, drawing 3 dissents.

If there’s an award for the most dissents, Chief Judge Stucky wins it for the second year in a row. But two years ago (in the 2015 Term) then-Judge Stucky dissented the most but was the least likely to draw dissents when he wrote for the court.

 

Part III: Individual Judge Statistics

Chief Judge Stucky wrote a total of 13 opinions this term: 9 opinions of the court, 1 concurring opinion, and 3 dissenting opinions. He was with the majority in 31 out of 34 cases with authored opinions (91%). Chief Judge Stucky voted for the Government division in 21 (62%) of those 34 cases, and dissented in 2 of the Government divisions’ 21 victories. 1 of those dissents, however, was in Barker, where Judge Stucky agreed that the Government division should win but he dissented because he would find the issue waived (he also dissented in Harpole, where the defense won).

Judge Ryan wrote a total of 9 opinions this term: 7 opinions of the court, 1 concurring opinion, and 1 dissenting opinion. She was with the majority in 33 (97%) out of 34 cases with authored opinions (including Barry, even though she dissented, because of the relief she would have granted). Judge Ryan voted for the Government division in 22 (65%) of those 34 cases, and dissented in none of the Government divisions’ 21 victories (her only dissent was in Jerkinswhere she disagreed with the relief the court granted to the defense).

Judge Ohlson wrote a total of 13 opinions this term: 9 opinions of the court, 1 concurring opinion, and 3 dissenting opinions. He was with the majority in 31 (91%) out of 34 cases with authored opinions. Judge Ohlson voted for the Government division in 20 (59%) of those 34 cases, and dissented in 2 of the Government divisions’ 21 victories (Hardy and Short) (he also dissented from the defense victory in Jerkins).

Judge Sparks wrote a total of 6 opinions this term: 6 opinions of the court, 0 concurring opinions, and 0 dissenting opinions. He was with the majority in 32 (97%) out of 33 cases with authored opinions (he recused himself from Barry). Judge Sparks voted for the Government division in 20 (61%) of those 33 cases, dissenting in 1 of the Government divisions’ 21 victories (Short).

Judge Maggs participated in only 11 of the 34 cases with authored opinions. He wrote a total of 4 opinions this term: 3 opinions of the court, 1 concurring opinion, and 0 dissenting opinions. He was with the majority in all 11 cases (including Barry, even though he joined Judge Ryan’s dissenting opinion, because of the relief he would have granted). Judge Maggs voted for the Government division in 7 (64%) of those 11 cases, dissenting from none of the Government divisions’ victories in which he participated.

 

Part IV: Civilian Counsel and the Appellate Defense Divisions

Civilian defense counsel argued 11 of the 36 cases (31%) argued at CAAF this term: (Guardado, Riesbeck, Honea, Mangahas, Jerkins, Condon, Carpenter, EppesKelly, Hardy, and Burris). That includes Mr. Mizer’s argument in Honea, even though Mr. Mizer argued the case in his official capacity as a civilian employee of the Air Force Defense Appellate Division.

Of those 11 arguments by civilian counsel, the defense won in 7 (64%).

In cases argued by military appellate defense counsel, the defense won in 8 out of 25 (32%).

On the Government division side one civilian attorney argued and won one case (Bailey).

Of the 8 cases where military defense counsel argued and won:

So the oral argument success rates for military defense counsel at each of the four appellate defense divisions, from best to worst, was:

  • Coast Guard Appellate Defense: 1 out of 2 (50%).
  • Army Appellate Defense: 4 out of 12 (33%).
  • Navy-Marine Corps Appellate Defense: 1 out of 3 (33%).
  • Air Force Appellate Defense: 2 out of 8 (25%).

 

Part V: Certified and Specified Issues

CAAF heard oral argument in 3 cases with issues certified by a Judge Advocate General: JacobsenKatso, and Simpson. Of those 3 cases, 2 were from the Army and 1 was from the Air Force.

The Government division won two out of the three.

CAAF also issued summary dispositions in two cases with certified issues: Gould (Army) and Hale (Marine Corps). In both cases CAAF rejected the certified issues.

CAAF specified issues for oral argument in 3 cases: Condon, Robinson (AR), and Riesbeck. The specified issues were dispositive in all three cases.

 

Part VI: The Courts of Criminal Appeals

Of the 36 cases heard at oral argument in the 2017 term, the CCAs were represented as follows:

  • 14 (39%) were from the Air Force CCA.
  • 16 (44%) were from the Army CCA.
  • 3 (8%) were from the Coast Guard CCA.
  • 3 (8%) were from the Navy-Marine Corps CCA.

One of those 36 arguments, however, was the motion in Hennis that didn’t involve direct review of a CCA’s decision.

Of the 35 oral arguments involving review of a CCA’s decision:

  • The Air Force CCA was reversed in 5 out of 14 cases (36%).
  • The Army CCA was reversed in 8 out of 15 cases (53%) (includes a partial reversal in Simpson).
  • The Coast Guard CCA was reversed in 3 out of 3 cases (100%) (includes partial reversals in Harpole and Bailey).
  • The Navy-Marine Corps CCA was reversed in 1 out of 3 cases (33%).

CAAF also reversed 11 CCA decisions by summary disposition (including 1 partial reversal in Tinsley). Of those 11 summary reversals:

  • 5 were from the Air Force CCA (3 Hills trailers and 1 Commisso trailer).
  • 5 were from the Army CCA (3 Hills trailers and 1 Burris trailer).
  • 1 was from the Navy-Marine Corps CCA (Tinsley).

Note: I scored the following summary dispositions as reversing a CCA: Tinsley, Robertson, Rice, Campbell, Frank, Brown, Thompson, Moynihan, Hoffmann, Marcum, and Hughes. Perhaps the list could be longer. One case not on my list is McGinn, where CAAF reversed the Army CCA’s finding of waiver but otherwise affirmed the CCA’s decision. Another case not on my list is Preston, where CAAF reversed an Air Force CCA ruling on a motion for reconsideration filed in connection with a petition for a new trial. I had to draw the line somewhere.

 

Part VII: Extraordinary Relief

CAAF considered 18 petitions for extraordinary relief during the 2017 term. All were denied in one form or another.

Two of the 18 are particularly noteworthy: Gray and Roberts.

In Gray, CAAF issued a per curiam opinion dismissing a writ-appeal with prejudice. United States v. Gray, 77 M.J. 5 (C.A.A.F. Nov. 13, 2017) (per curiam) (CAAFlog case page). I interpreted that decision (in posts here and here) as casting doubt on the continued viability of the Supreme Court’s holding in United States v. Denedo, 556 U.S. 904, 912-913 (2009), that the military appellate courts have jurisdiction to conduct collateral review of courts-martial. Gray then sought certiorari, and the Solicitor General filed a brief opposing certiorari but making this concession:

The government agrees with petitioner that, under this Court’s decision in United States v. Denedo, 556 U.S. 904 (2009), the military courts have subject-matter jurisdiction to entertain such requests for coram nobis relief and that the CAAF erred in concluding othe[r]wise.

Br. at 12. SCOTUS denied the petition but the SG’s concession (probably) keeps Denedo alive.

In Roberts, CAAF dismissed a writ-appeal on the basis that it was really a late petition for a new trial:

No. 18-0177/AR. Rob W. Roberts, Appellant v. United States, Appellee. CCA20180005. On consideration of the writ-appeal petition, it is ordered that said writ-appeal petition is hereby dismissed for lack of jurisdiction.*

* Although styled as a petition for extraordinary relief in the nature of a writ of error coram nobis, this is a request for a new trial in which the statutory period for filing such claims has expired.

CAAF’s decision affirmed the similar action of the Army CCA (analyzed here).

 

Part VIII: A Preview of the 2018 Term

CAAF begins the 2018 term with 19 cases on its docket. Those include one capital appeal (Hennis) that was docketed last year and in which CAAF’s review is mandatory. It also includes one case remanded by the Supreme Court (Briggs), and two certified cases (Cooper and Perkins).

The court already heard oral argument in two cases in the 2018 term: Eugene and Criswell. The arguments were heard before the official start of the term as part of CAAF’s Project Outreach.

Other notable cases include CAAF’s grant of review (with no briefing ordered) in a Navy case (Greening) that involves successive prosecutions and the separate sovereigns doctrine. The Supreme Court is reconsidering the doctrine in Gamble v. United States, No. 17-646 (link to docket page). The doctrine is also at issue in Hennis.

CAAF also granted review in another Navy case (Forbes) where the appellant pleaded guilty to sexual assault by causing bodily harm for failing to inform his sexual partners of his HIV-positive status. That case might cause CAAF to reconsider its ultimate holding in United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. 2015) (CAAFlog case page) (the #7 Military Justice Story of 2015).

And the long running court-martial prosecution of Marine Sergeant Hutchins, for his participation in a 2006 kidnap-murder conspiracy in Iraq, will be reviewed by CAAF for a third time.

Also returning to CAAF is Tucker, which questions whether negligence is a sufficient mens rea for a violation of Article 134.

Other recent grants can be reviewed in our CAAF Grants category.

CAAF’s schedule includes 24 oral argument dates for the 2018 term – a somewhat average number that is fewer than the 30 scheduled argument days for the 2017 term (of which only 19 were used) and the 27 scheduled argument days in the  2016 term (of which only 23 were used). CAAF typically hears two oral arguments per day, suggesting that it anticipates hearing about 45 oral arguments in the 2018 term. That’s consistent with the court’s oral argument workload over the past decade, as shown by this chart from CAAF’s FY17 Annual Report:

As always, we will track and analyze the court’s activity as the term develops.

Scholarship Saturday: A hope unfulfilled – the twilight of Staff Judge Advocate power

In 1983, Congress gave Staff Judge Advocates (“SJAs”) veto power over general court-martial prosecutions. Specifically, Article 34, UCMJ, 10 U.S.C. 834, was amended to stop convening authorities from sending any specification to trial by general court-martial without first being advised by their SJA, in writing, that “the specification is warranted by the evidence.”

That statutory change was intended to be a check on commanders’ discretion. In his Jan 2016 Article, The SJA’s Article 34 Veto: A Force Awakening?, 224 Mil. L. Rev. 289 (2016), Military Trial Judge CAPT Gary Felicetti explains:

The dominant issue in 1983 was more justice for the accused. . . . Both the Supreme Court and the general public distrusted the court-martial process. [Accordingly,] the SJA [was given] de facto veto power over referral of any specification to a general court-martial.

224 Mil. L. Rev. at 297-300.

This was an unprecedented power, and an opportunity to allow trained lawyers to steer the military justice system towards public approval. It was an opportunity squandered.

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Opinion Analysis: Under somewhat unique circumstances, the kidnapping conviction is legally sufficient in United States v. Acevedo

CAAF decided the Army case of United States v. Acevedo, 77 M.J. 185, No. 17-0224/AR (CAAFlog case page) (link to slip op.), on Tuesday, February 6, 2018. Focusing on the “somewhat unique circumstances” of the case, a majority of CAAF concludes that the conviction of kidnapping by inveiglement (luring or enticing) is legally sufficient, and affirms it and the decision of the Army CCA.

Judge Sparks writes for the court, joined by all but Judge Ryan who dissents.

Staff Sergeant (E-6) Acevedo was convicted by a general court-martial composed of members with enlisted representation of kidnapping Private (E-2) AM by inveiglement, in violation of Article 134. Acevedo was acquitted of other offenses, including offenses related to sexual acts with AM that occurred after the alleged kidnapping. The Army CCA affirmed the findings and sentence without issuing a written opinion.

CAAF then granted review of four issues. Three were Dalmazzi/Ortiz trailer issues. The fourth questioned:

Whether the evidence is legally insufficient to support a charge of kidnapping by inveiglement.

A majority of CAAF finds that the evidence is sufficient. Judge Ryan, however, rejects this holding as “contrary to the precedent of the Supreme Court, the federal courts of appeals that have considered the issue, and our own Court,” and she invokes CAAF’s “heightened responsibility to ensure that servicemembers receive fair and impartial justice, instead of a rough form of justice.” Diss. op at 4 (marks and citation omitted).

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Opinion Analysis: A mess so big that the charge is dismissed with prejudice, in United States v. Honea

CAAF decided the Air Force case of United States v. Honea III, 77 M.J. 181, No.17-0347/AF (CAAFlog case page) (link to slip op.), on Thursday, February 1, 2018. Finding the record “a tangled morass,” that “does not establish with certainty what the findings were,” CAAF concludes that appellate review is impossible and reverses the findings, sentence, and decision of the Air Force CCA. Yet because the record is “so irredeemably muddled,” CAAF does not authorize a rehearing and instead dismisses the charge with prejudice.

Judge Ohlson writes for a unanimous court.

CAAF granted review of two issues:

I. Immediately before the defense rested its case, the military judge invited the parties’ attention to R.C.M. 910, and directed the defense to provide the    military judge with a draft specification of assault consummated by a battery. Did the lower court err when it held that the defense’s compliance with the military judge’s directive constituted a de facto defense request to modify the specification pursuant to R.C.M. 603 where there is no evidence that either the defense or the convening authority were aware the charge was being amended pursuant to R.C.M. 603?

II. The military judge dismissed Specification 2 of Charge II, abusive sexual contact by causing bodily harm, for failure to state an offense, but she allowed the Government to roceed to trial on the purported lesser included offense of assault consummated by a battery. Did the military judge err?

At the conclusion of the oral argument in this case, Chief Judge Stucky said:

Counsel for both sides having manfully striven to make something of this mess, the case is now submitted.

The mess, however, prevails.

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Opinion Analysis: An error “both so obvious and so egregious that it adversely affected not only Appellant’s right to a fair trial by an impartial panel, but also the essential fairness and integrity of the military justice system,” in United States v. Riesbeck

CAAF decided the Coast Guard case of United States v. Riesbeck, 77 M.J. 154, No. 17-0208/CG (CAAFlog case page) (link to slip op.), on Tuesday, January 23, 2018. Finding that gender was improperly used as a criteria for selection of the members of the court-martial, categorizing that as an “obvious error,” labeling the post-trial review of that error up to this point “a stain on the military justice system,” and emphasizing that “the Government, set on arguing that there was no error, hasn’t even claimed to meet its burden to show the error was harmless,” CAAF sets aside the findings and orders the charges dismissed with prejudice.

Judge Ryan writes for a unanimous court.

A general court-martial composed of members with enlisted representation convicted Boatswain’s Mate Second Class (E-5) Riesbeck, contrary to his pleas of not guilty, of making false official statements, forcible rape, and communicating indecent language, in violation of Articles 107, 120, and 134. The panel sentenced Riesbeck to confinement for three months, reduction to E-2, and a bad-conduct discharge.

That panel, however, had remarkable demographics: “the seven-member panel that convicted and sentenced Appellant was composed of five women, four of whom were victim advocates – persons trained to provide support and counseling to victims of rape and sexual assault – and two men.” Slip op. at 1. CAAF granted review of two issues (both specified by the court) regarding that composition:

I. Whether the members of Appellant’s court-martial panel were properly selected.

II. Whether Appellant was deprived of a fair trial, or the appearance of a fair trial, where a majority of the panel members were former victim advocates and the military judge denied a challenge for cause against one of them

Today’s opinion doesn’t address Issue II because in resolving Issue I the court concludes that:

[T]he error in this case is both so obvious and so egregious that it adversely affected not only Appellant’s right to a fair trial by an impartial panel, but also the essential fairness and integrity of the military justice system. We thus decline to authorize a rehearing, and order that the charges and specifications be dismissed with prejudice.

Due to the patent and intolerable efforts to manipulate the member selection process, contra every requirement of the law, the failures of the military judge, the DuBay military judge, and the CGCCA, to investigate, recognize, or ameliorate the clear court stacking in this case, and the actual prejudice to the Appellant of being tried by a panel cherry-picked for the Government, dismissal with prejudice is the only remedy that can eradicate the unlawful command influence and ensure the public perception of fairness in the military justice system.

Slip op. at 18 (marks and citations omitted) (paragraphing added).

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CAAF Argument Audio: Bailey & Riesbeck

Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Bailey, No. 17-0265/CG (CAAFlog case page): Oral argument audio.

United States v. Riesbeck, No. 17-0208/CG (CAAFlog case page): Oral argument audio.

This Week in Military Justice – October 22, 2017

This week at SCOTUS: A petition for certiorari was filed in Herrmann v. United States, No. 17-593, on October 11, 2017. CAAF affirmed Sergeant (E-5) Herrmann’s conviction of reckless endangerment for the pencil packing of reserve parachutes by applying a plain-language meaning of the term likely in the element of conduct likely to produce death or grievous bodily harm, in United States v. Herrmann, 76 M.J. 304 (C.A.A.F. Jun. 19, 2017) (CAAFlog case page).

An extension of time to file a cert. petition was granted in Cash v. United States, No. 17A415. CAAF granted and summarily affirmed on July 25, 2017. 76 M.J. 478. The Army CCA summarily affirmed the trial result without issuing a written opinion.

The Solicitor General received a second extension of time to file the requested response to the cert. petition in Bartee.

I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking eight cases:

This week at CAAF: CAAF will hear oral argument in four cases this week:

Tuesday, October 24, 2017, at 9:30 a.m.:

United States v. Short, No. 17-0187/AR (CAAFlog case page)

Issue: Whether government counsel committed prosecutorial misconduct when they made improper argument after repeatedly eliciting inadmissible testimony.

Case Links:
• ACCA opinion
• Appellant’s brief
• Appellee’s (Army Gov’t App. Div.) answer
• Appellant’s reply brief
• Blog post: Argument preview

Followed by:

United States v. Gonzalez-Gomez, No. 17-0200/AR (CAAFlog case page)

Issue: Whether dilatory post-trial processing violated Appellant’s due process rights and warrants relief when 782 days elapsed between docketing at the Army Court and opinion.

Case Links:
• ACCA opinion (75 M.J. 965)
• Appellant’s brief
• Appellee’s (Army Gov’t Appellate Div.) brief
• Appellant’s reply brief
• Blog post: Argument preview

Wednesday, October 25, 2017, at 9:30 a.m.:

United States v. Bailey, No. 17-0265/CG (CAAFlog case page)

Issues:
I. Upon request by the defense counsel and using a defense-drafted instruction, should the military judge have provided the members with an explanation of the term “incapable.”
II. Whether the decision of the United States Coast Guard Court of Criminal Appeals is ambiguous as to whether the affirmed sentence included forfeiture of all pay and allowances.

Case Links:
• CGCCA opinion
• Appellant’s brief
• Appellee’s (Coast Guard Gov’t App. Div.) brief
• Appellant’s reply brief
• Blog post: Argument preview

Followed by:

United States v. Riesbeck, No. 17-0208/CG (CAAFlog case page)

Issues:
I. Whether the members of Appellant’s court-martial panel were properly selected.
II. Whether Appellant was deprived of a fair trial, or the appearance of a fair trial, where a majority of the panel members were former victim advocates and the military judge denied a challenge for cause against one of them.

Case Links:
• CGCCA opinion
• Blog post: CGCCA Finds Appellant Waived Challenge to Panel Make-up 
• Blog post: CAAF reverses
• CGCCA opinion
• Appellant’s brief
• Appellee’s (Coast Guard Appellate Gov’t Div.) brief
• Appellant’s reply brief
• Blog post: Argument preview

This week at the ACCA: The next scheduled oral argument at the Army CCA is on October 30, 2017.

This week at the AFCCA: The Air Force CCA will hear oral argument in one case this week, on Tuesday, October 24, 2017, at the Florida International University College of Law:

United States v. Swafford, No. S32435

Issue:
Was Appellant denied effective assistance of counsel when his counsel failed to move to suppress appellant’s statements to investigators made while in post-trial confinement for a previous court-martial?

This week at the CGCCA: The The Coast Guard CCA’s oral argument schedule – finally available on the CCA’s new website – shows no scheduled oral arguments at the CCA.

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

Argument Preview: Is a fair panel more than the sum of its parts, in United States v. Riesbeck, No. 17-0208/CG

CAAF will hear oral argument in the Coast Guard case of United States v. Riesbeck, No. 17-0208/CG (CAAFlog case page), on Wednesday, October 25, 2017, after the argument in Bailey. CAAF specified two issues involving the members of the court-martial:

I. Whether the members of Appellant’s court-martial panel were properly selected.

II. Whether Appellant was deprived of a fair trial, or the appearance of a fair trial, where a majority of the panel members were former victim advocates and the military judge denied a challenge for cause against one of them.

A general court-martial composed of members with enlisted representation convicted Boatswain’s Mate Second Class (E-5) Riesbeck, contrary to his pleas of not guilty, of making false official statements, forcible rape, and communicating indecent language, in violation of Articles 107, 120, and 134. The panel sentenced Riesbeck to confinement for three months, reduction to E-2, and a bad-conduct discharge.

We first discussed this case here, reviewing the Coast Guard CCA’s 2014 decision that found the issue of improper panel selection waived by the failure to make a timely objection. CAAF summarily reversed and remanded for further review (noted here). The CCA then heard oral argument (noted here) and issued a new decision (available here) affirming the findings and sentence.

The court-martial panel was initially composed of ten members, seven of whom were women. This was a disproportionate percentage of women considering the composition of the command. Of those initial ten members, voir dire revealed that five had served as sexual assault victim advocates and two more had training or experience assisting victims of sexual assault. The defense challenged three members; the military judge granted two of those challenges, and the defense used its peremptory challenge on the third (the prosecution made no challenges). Seven members remained after challenges. Five of them were women, all of whom had victim advocate experience.

These facts indicate a problem with the second issue specified by CAAF. R.C.M. 912(f)(4) states that “when a challenge for cause has been denied the successful use of a peremptory challenge by either party, excusing the challenged member from further participation in the court-martial, shall preclude further consideration of the challenge of that excused member upon later review.” The challenged member referenced in Issue II was excused by use of a peremptory challenge.

This rule was promulgated in 2005, before Riesbeck’s case was tried. Under the prior rule any error in the denial of a challenge could be preserved despite use of a peremptory challenge, but the 2005 change specifically eliminated that possibility. See United States v. Harman, 66 M.J. 710, 719 n.2 (A. Ct. Crim. App. 2008) (discussing change). Unfortunately, none of the briefs – nor the CCA’s opinions – address this. Rather, Riesbeck’s brief concludes:

Conclusion

The defense challenge against LCDR KO should have been granted. As one of five victim advocates and a crime victim herself, her presence on the panel would have created an appearance of unfairness. Further, denial of the challenge forced the defense to use its preemptory challenge unnecessarily.

App. Br. at 29. Because this member was excused peremptorily, R.C.M. 912(f)(4) bars further consideration of the challenge.

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October 2017 Term of Court

Cases heard at oral argument this term (includes 1 motion): 36
Argued cases decided by authored decision: 34
Argued cases decided per curiam or by summary disposition: 2
Argued cases pending decision: 0
Other cases noted below: 1

Blog post: 2017 Term End o’ Term Stats

Authored Decisions (chronological by date of decision):

United States v. Pugh, 77 M.J. 1 (C.A.A.F. Nov. 7, 2017) (CAAFlog case page): In a post-trial prosecution interlocutory appeal about the validity of the blanket prohibition on consuming hemp products in Air Force instruction 90-507, paragraph 1.1.6., a unanimous CAAF finds that while the prohibition “may have a valid military purpose, it is overly, and inappropriately, broad as it pertains to Food and Drug Administration (FDA) approved food products.”

United States v. Hennis, 77 M.J. 1 (C.A.A.F. Nov. 20, 2017) (CAAFlog case page): Unanimously concluding that there is no constitutional, statutory, or regulatory authority for the court to grant a defense “motion to compel funding for learned counsel, a mitigation specialist, and a fact investigator; for appointment of appellate team members; and for a stay of proceedings,” CAAF denies it.

United States v. Bailey, 77 M.J. 11 (C.A.A.F. Nov. 29, 2017) (CAAFlog case page): Holding that the term incapable in the element of incapable of consenting has such a plain meaning that no instruction is required to define the term for members – and rejecting as inaccurate the instruction on the term’s meaning that was proposed by the defense at trial – a unanimous CAAF nevertheless encourages military judges to continue to give the Benchbook definition of incapable of consenting added after the court’s decision in United States v. Pease, 75 M.J. 180 (C.A.A.F. 2016) (CAAFlog case page).

United States v. Jacobsen, 77 M.J. 81 (C.A.A.F. Dec. 11, 2017) (CAAFlog case page): Answering only the discrete question presented in the JAG’s certification, a majority of CAAF holds that a trial counsel’s certification does not conclusively establish appellate jurisdiction over an interlocutory prosecution appeal.

United States v. Guardado, 77 M.J. 90 (C.A.A.F. Dec. 12, 2017) (CAAFlog case page): Practically ignoring the five factors utilized by the Army CCA to analyze the prejudice from the improper use of charged offenses for propensity purposes under Mil. R. Evid. 413 or 414, the court unanimously reverses the CCA’s opinion that found such improper use to be harmless in this case. The court also finds that two novel 134 specifications fail to state offenses, applying last term’s decision in United States v. Reese, 76 M.J. 297 (C.A.A.F. Jun. 14, 2017) (CAAFlog case page).

United States v. Short, 77 M.J. 148 (C.A.A.F. Jan. 5, 2018) (CAAFlog case page): Reviewing various improprieties by the prosecution that prompted the defense to request a mistrial three separate times, a three-judge majority concludes that those requests were properly denied because misconduct was not so severe that curative instructions were inadequate. But two judges dissent and would reverse the findings, concluding that misconduct was severe, the instructions ineffective, and the evidence underwhelming.

United States v. Riesbeck, 77 M.J. 154 (C.A.A.F. Jan. 23, 2018) (CAAFlog case page): Finding that gender was improperly used as a criteria for selection of the members of the court-martial, categorizing that as an “obvious error,” labeling the post-trial review of that error up to this point “a stain on the military justice system,” and emphasizing that “the Government, set on arguing that there was no error, hasn’t even claimed to meet its burden to show the error was harmless,” a unanimous CAAF sets aside the findings and orders the charges dismissed with prejudice.

United States v. Chisum, 77 M.J. 176 (C.A.A.F. Jan. 26, 2018) (CAAFlog case page): Reviewing the mental health records of two prosecution witnesses – even though the records were not reviewed by the trial military judge and were made available for the first time on appeal – CAAF holds that any error in failing to produce them at trial was harmless, affirming the findings, sentence, and decision of the Air Force CCA.

United States v. Honea III, 77 M.J. 181 (C.A.A.F. Feb. 1, 2018) (CAAFlog case page): Finding the record “a tangled morass,” that “does not establish with certainty what the findings were,” CAAF concludes that appellate review is impossible and reverses the findings, sentence, and decision of the Air Force CCA. Yet because the record is “so irredeemably muddled,” CAAF does not authorize a rehearing and instead dismisses the charge with prejudice.

United States v. Acevedo, 77 M.J. 185 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page): Focusing on the “somewhat unique circumstances” of the case, a majority of CAAF concludes that the conviction of kidnapping by inveiglement (luring or enticing) is legally sufficient, and affirms it and the decision of the Army CCA.

United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page): Answering only the issue specified by the court after oral argument in this interlocutory case, a unanimous CAAF holds that the offense of rape of an adult (without aggravating factors) is not constitutionally punishable by death, and so the statute of limitations for a court-martial prosecution for that offense (prior to amendments enacted in 2006) is just five years. Accordingly, the decision of the Air Force CCA is reversed and a two-decade old allegation of rape is dismissed.

United States v. Jerkins, 77 M.J. 225 (C.A.A.F. Feb. 8, 2018) (CAAFlog case page): Unanimously agreeing that the military judge abused her discretion by allowing the prosecution to introduce a non-final general officer memorandum of reprimand (GOMOR) into evidence during the sentencing phase of the court-martial, a bare majority of the court finds prejudice and reverses the sentence and the decision of the Army CCA, remanding for reassessment or a sentence rehearing.

United States v. Harpole, 77 M.J. 231 (C.A.A.F. Feb. 14, 2018) (CAAFlog case page): CAAF unanimously concludes that the appellant’s statements to a military victim advocate were not privileged because a third-party was present when the statements were made, however a majority finds that further fact-finding is necessary to determine whether it was ineffective assistance of counsel for the defense to fail to seek suppression of the statements for violation of Article 31(b). Accordingly, CAAF reverses the decision of the Coast Guard CCA and remands the case for a fact-finding hearing.

United States v. Blanks, 77 M.J. 239 (C.A.A.F. Feb. 28, 2018) (CAAFlog case page): Finding no persuasive reason to overrule 65 years of precedent holding that negligent dereliction of duty is an offense under the UCMJ, CAAF unanimously affirms the appellant’s conviction of negligent dereliction and the decision of the Air Force CCA.

United States v. Condon, 77 M.J. 244 (C.A.A.F. Mar. 1, 2018) (CAAFlog case page): In a short, fact-specific opinion CAAF unanimously concludes that it was harmless to show the members a video of the appellant’s interrogation during which he invoked his right to counsel, affirming the decision of the Air Force CCA.

United States v. Katso, 77 M.J. 247 (C.A.A.F. Mar. 12, 2018) (CAAFlog case page): Unanimously concluding that the Air Force CCA was wrong to apply the pretrial confinement review procedures of Rule for Courts-Martial 305 to Katso’s continued post-trial confinement while appellate review was underway, CAAF reverses the CCA’s award of 365 days of confinement credit.

United States v. Mooney, 77 M.J. 252 (C.A.A.F. Mar. 12, 2018) (CAAFlog case page): The court unanimously concludes that the convening authority was prohibited from ordering the court-martial sentence to run consecutively with a federal sentence, reversing a published decision of the Air Force CCA and setting aside the convening authority’s action as void ab initio.

United States v. Simpson, 77 M.J. 279 (C.A.A.F. Mar. 19, 2018) (CAAFlog case page): Answering the certified issue in the negative, CAAF reemphasizes that the victim of a larceny under Article 121 is the person or entity from whom the accused obtained the goods or money at issue, and not merely any person who suffered a loss or consequence as a result of the accused’s actions.

United States v. Carpenter, 77 M.J. 285 (C.A.A.F. Mar. 20, 2018) (CAAFlog case page): Reviewing the military judge’s restriction of the defense cross-examination of the alleged victim (based on Mil. R. Evid. 412), a unanimous CAAF finds that the military judge did not abuse his discretion based on the defense argument at trial, despite the defense making a different argument on appeal.

United States v. Wheeler, 77 M.J. 289 (C.A.A.F. Mar. 22, 2018) (CAAFlog case page): Limiting the preemption doctrine to cases where a federal offense is incorporated under Clause 3 of Article 134 for the purpose of reducing the prosecution’s evidentiary burden at trial, a unanimous CAAF concludes that the appellant’s conviction of coercion and enticement of a minor in violation of 18 U.S.C. § 2422(b) is not preempted by the enumerated offense of sexual abuse of a child in violation of Article 120b(c) because there is no indication that the federal offense was charged in order to circumvent an element of the Article 120b offense.

United States v. Robinson (AR), 77 M.J. 294 (C.A.A.F. Mar. 26, 2018) (CAAFlog case page): CAAF finds any error harmless and a sexual assault conviction legally sufficient, dodging a contentious debate about the reach of the constitutionally-required exception to Mil. R. Evid. 412 (the military’s rape shield rule). This is one of two cases by the same name (but with different appellants) decided on the same day.

United States v. Robinson (AF), 77 M.J. 303 (C.A.A.F. Mar. 26, 2018) (CAAFlog case page):A majority of the court finds no constitutional violation in military investigators requesting a device passcode from a suspect who consented to a search of the device after invoking his right to remain silent and requesting an attorney, distinguishing this case from and rejecting application of last term’s decision in United States v. Mitchell, 76 M.J. 413 (C.A.A.F. Aug. 30, 2017) (CAAFlog case page). This is one of two cases by the same name (but with different appellants) decided on the same day.

United States v. Eppes, 77 M.J. 339 (C.A.A.F. Apr. 10, 2018) (CAAFlog case page): Resolving challenges to two separate searches, CAAF unanimously concludes that one search was proper, and a majority find the fruits of the second search technically problematic but ultimately admissible. Accordingly, the appellant’s conditional pleas of guilty and the decision of the Air Force CCA are affirmed.

United States v. Barker, 77 M.J. 377 (C.A.A.F. May 21, 2018) (CAAFlog case page): Reviewing a written statement from a child pornography victim that was admitted during the sentencing phase of a court-martial under Rule for Courts-Martial 1001A – the President’s implementation of the Article 6b right of an alleged victim to be reasonably heard – a functionally-unanimous CAAF concludes that the statement was not admissible under that rule because the victim did not actually participate in the proceeding (and perhaps didn’t even know about the appellant’s prosecution). Nevertheless, the court concludes that the erroneous admission of the statement was harmless because the appellant pleaded guilty and was sentenced by a military judge alone, the defense sentencing case was weak, and the prosecution’s sentencing case was otherwise strong. Chief Judge Stucky dissents, but only because he would find the issue waived (and vacate the grant of review) due to a waiver term of the pretrial agreement.

United States v. Andrews, 77 M.J. 393 (C.A.A.F. May 22, 2018) (CAAFlog case page). Rejecting the Navy-Marine Corps Appellate Government Division’s argument that the failure to object to improper argument at trial waives any error on appeal, a unanimous CAAF applies stare decisis to hold that the failure to object merely forfeits any error. Any improper argument by the prosecution in this particular case, however, was harmless.

United States v. Kelly, 77 M.J. 404 (C.A.A.F. May 23, 2018) (CAAFlog case page): In a short, tightly-written opinion, CAAF holds that a court of criminal appeals does have the power to disapprove a mandatory minimum punitive discharge, reversing a published en banc (but non-unanimous) decision of the Army CCA.

United States v. Hardy, 77 M.J. 438 (C.A.A.F. Jun. 5, 2018) (CAAFlog case page): A somewhat fractured court concludes that an unconditional plea of guilty waives any issue of unreasonable multiplication of charges (UMC) (a doctrine that addresses uniquely-military factors increasing the potential for prosecutorial overreach).

United States v. Dinger, 77 M.J. 447 (C.A.A.F. Jun. 18, 2018) (CAAFlog case page): A unanimous CAAF affirms that a retired member of the armed forces can be sentenced to a punitive discharge.

United States v. Hendrix, 77 M.J. 454 (C.A.A.F. Jun. 19, 2018) (CAAFlog case page): Rejecting the military judge’s conclusion that a dismissal of charges (followed shortly by a re-preferral) was a subterfuge to avoid the regulatory (R.C.M. 707) speedy trial right, CAAF finds no speedy trial violation and reverses the military judge’s decision that dismissed the charges with prejudice.

United States v. Williams, 77 M.J. 459 (C.A.A.F. Jun. 27, 2018) (CAAFlog case page): In this Hills trailer case involving the improper use of charged offenses for propensity purposes, CAAF holds that the Army CCA wrongly held that the circumstances involve an exception to United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page). The court reverses convictions of rape and forcible sodomy, affirms other convictions, and authorizes a rehearing.

United States v. Armstrong, 77 M.J. 465 (C.A.A.F. Jun. 28, 2018) (CAAFlog case page): CAAF unanimously holds that assault consummated by a battery is not a lesser included offense of abusive sexual contact by causing bodily harm because even though both offenses require bodily harm, a battery must involve unlawful force or violence, while abusive sexual contact need only involve a certain mental state. Nevertheless, reviewing for plain error (because the defense failed to preserve the issue with a timely objection) CAAF finds no material prejudice to the defense in this case and affirms the conviction of assault consummated by a battery.

United States v. Christensen, 78 M.J. 1 (C.A.A.F. July 10, 2018) (CAAFlog case page): In a narrowly-written opinion, the court distances itself from (but does not overrule) its precedent regarding when a servicemember is discharged from the service and court-martial jurisdiction ends. CAAF concludes that under the specific facts of this case, reason and policy dictate that the appellant was discharged prior to his court-martial and so the tribunal lacked personal jurisdiction to try him.

United States v. Jones, 78 M.J. 37 (C.A.A.F. July 31, 2018) (CAAFlog case page): Applying the old corroboration rule, CAAF unanimously finds that sufficient independent evidence was admitted to corroborate a confession to larceny of military property, even after excluding the statement of a co-conspirator that the Army Government Appellate Division conceded was improperly admitted (and used as corroboration at trial). Because the confession was otherwise corroborated, the erroneous admission of the co-conspirator’s statement is harmless and the findings, sentence, and decision of the Army CCA are affirmed.

United States v. Barry, 78 M.J. 70 (C.A.A.F. Sep. 5, 2018) (CAAFlog case page): A divided court agrees that the appellant’s conviction of sexual assault in violation of Article 120(b) must be reversed, but it disagrees about how and why that reversal should occur. The majority finds actual unlawful command influence and orders the charge and specification dismissed with prejudice, while the dissenters would instruct the convening authority to withdraw the action and substitute a corrected action disapproving the finding of guilty.

 

Summary & Per Curiam Decisions in Argued Cases (chronological by date of decision):

United States v. Gonzalez-Gomez, 77 M.J. 99 (C.A.A.F. Nov. 2, 2017) (summ. disp.) (CAAFlog case page): Just nine days after hearing oral argument, CAAF summarily reversed and remanded the case for further consideration of the adequacy of the CCA’s grant of 180 days of confinement credit for dilatory post-trial processing.

United States v. Burris, 78 M.J. 56 (C.A.A.F. Jul. 19, 2018) (summ. disp.) (CAAFlog case page): CAAF holds that a mere failure to object to evidence and to findings argument constitutes forfeiture, not waiver, and remands for a new review by the Army CCA.

 

Other Decisions (chronological by date of decision):

United States v. Gray, 77 M.J. 5 (C.A.A.F. Nov. 13, 2017) (per curiam) (CAAFlog case page): A decision issued without oral argument, CAAF dismisses with prejudice a writ-appeal of a petition for extraordinary relief in the form of a writ of error coram nobis, concluding that it does not have jurisdiction to consider the writ in a case that is final in all respects under the UCMJ. The decision seems to be in direct conflict with the Supreme Court’s decision in United States v. Denedo, 556 U.S. 904, 912-913 (2009).

 

Riesbeck headed back to CAAF

On Friday CAAF granted review in a Coast Guard case, specifying two issues for review:

No. 17-0208/CG. U.S. v. John C. Riesbeck. CCA 1374. On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues specified by the Court:

I. WHETHER THE MEMBERS OF APPELLANT’S COURT-MARTIAL PANEL WERE PROPERLY SELECTED.

II. WHETHER APPELLANT WAS DEPRIVED OF A FAIR TRIAL, OR THE APPEARANCE OF A FAIR TRIAL, WHERE A MAJORITY OF THE PANEL MEMBERS WERE FORMER VICTIM ADVOCATES AND THE MILITARY JUDGE DENIED A CHALLENGE FOR CAUSE AGAINST ONE OF THEM.

Briefs will be filed under Rule 25.

We first discussed this case here, when Sam reviewed the Coast Guard CCA’s 2014 decision that found that civilian defense counsel waived the issue of improper panel selection by failing to make a timely objection. But CAAF reversed and remanded for further review (noted here). The CCA then heard oral argument (noted here) and issued a new decision (available here) affirming the findings and sentence.

At the heart of the case is the fact that the appellant was convicted of rape – arising from an encounter during a September 2010 port call in Puerto Vallarta, Mexico – by a panel composed of six women and two men. Of those, five of the women had training as a victim advocate or had assisted women who had complained of sexual assault. Nevertheless, in its most recent opinion the CCA concluded that “Appellant has failed to produce sufficient evidence to raise the issue of court stacking.” Slip op. at 9.

This Week in Military Justice – July 10, 2016

Significant military justice event this week: The Young Lawyers Division of the American Bar Association will host a free webinar on the Bergdahl case on Wednesday, July 13, 2016, from 1:00 p.m. to 2:00 p.m. (eastern time). Register here.

This week at SCOTUS: The Solicitor General received an additional extension of time to respond to the cert. petition in Akbar. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking two cases:

This week at CAAF: CAAF has completed its oral argument calendar for the term. Details about this term’s cases are available on our 2015 Term of Court page.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Tuesday, July 12, 2016, at 2 p.m.:

United States v. Bonilla, No. 20131084

Issues:
I. Whether the military judge erred by allowing a damaging hearsay statement into evidence after he already ruled the specific statement inadmissible.
II. Whether the military judge abused his discretion in prohibiting the defense from completing their closing argument.

Note: This argument was rescheduled from June 14.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on August 18, 2016.

This week at the CGCCA: The Coast Guard CCA will hear oral argument in one case this week, on Tuesday, July 12, 2016, at 10 a.m.:

United States v. Riesbeck

Issue: Whether the panel of members was properly selected.

Note: Our prior discussion of this case is available here and here.

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

CAAF reverses the CGCCA’s finding of waiver in Riesbeck

Back in September, in this post, Sam analyzed the Coast Guard CCA’s opinion in United States v. Riesbeck, No. 1374 (C.G. Ct. Crim. App. Aug. 5, 2014) (link to slip op.). The CCA affirmed a trial-stage ruling that the appellant’s counsel waived a challenge to the court-martial panel’s composition (the panel appeared to be stacked with female members) by failing to object soon enough. In his analysis, Sam noted that “[RCM] 912(b)(3) provides that the issue is not waived where there is a violation of RCM 502(a)(1).”

On Thursday, December 11, CAAF took the following action in the case that shows that Sam’s analysis was right on:

No. 15-0074/CG. U.S. v. John C. Riesbeck. CCA 1374.  On consideration of Appellant’s petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, we conclude that the issue of improper member selection was not waived because of the exception contained in Rule for Courts-Martial (RCM) 912(b)(3) to the timeliness requirement of RCM912(b)(1). On its face, RCM 912(b)(3) provides an exception to waiver where the objection is made on the basis of an allegation that the convening authority selected members in violation of RCM502(a)(1) for reasons other than those listed in Article 25(d)(2), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 825(d)(2) (2012): age, education, training, experience, length of service, and judicial temperament.  Furthermore, improper member selection can constitute unlawful command influence, an issue that cannot be waived. United States v. Baldwin, 54 M.J. 308, 310 n.2 (C.A.A.F. 2001). Because the exception of RCM 912(b)(3) should have applied, the question remains whether Appellant was deprived of a fair trial by an impartial panel. Accordingly, it is ordered that said petition is hereby granted on the following issue:

WAS APPELLANT DEPRIVED OF A FAIR TRIAL BY AN IMPARTIAL PANEL?

The decision of the United States Coast Guard Court of Criminal Appeals is set aside, and the case is returned to the Judge Advocate General of the Coast Guard for remand to the Court of Criminal Appeals for further review under Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2012). Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2012), shall apply.

CAAF also granted review in two Air Force cases last week.

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CGCCA Finds Appellant Waived Challenge to Panel Make-up

In its recent opinion United States v. Riesbeck, No. 1374 (CGCCA 5 Aug 2014), the CGCCA finds that an appellant waived a challenge to a “stacked” panel for his general court-martial. The appellant was charged with and convicted of, among other things, a specification of rape in violation of Article 120, UCMJ. The charges stemmed from an incident in September 2010 that occurred during a port call in Puerto Vallarta, Mexico.

On appeal, the appellant raises several issues including the composition of his court-martial panel. The final panel chosen by the convening authority consisted of seven women and three men, which was actually an increase in women from the six women and four men that had been on a previous version of the convening order. Of these, five individuals had served as or were currently serving as victim advocates, and two others had assisted women who had complained of sexual assault. Two of these individuals, who were trained as victim advocates or had assisted a female sexual assault complainant, were successfully challenged for cause and eventually excused. However, the appellant’s final panel that was seated included five women who had served or were serving as victim advocates or had assisted a woman who had complained of sexual assault.

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