CAAF today granted review of these two issues:

I.   WHETHER SPECIFICATION 3 OF CHARGE I IS VOID FOR VAGUENESS BECAUSE THE APPELLANT WAS NOT GIVEN FAIR NOTICE THAT THE CHARGED CONDUCT OF POSSESSING “SEXUALLY SUGGESTIVE” MATERIAL OF MINORS AS “SEXUAL OBJECTS” WAS FORBIDDEN AND SUBJECT TO CRIMINAL ACTION.

II.  WHETHER SPECIFICATION 3 OF CHARGE I IS LEGALLY INSUFFICIENT WHEN THE GOVERNMENT FAILED TO PROVE THAT THE POSSESSION OF CONSTITUTIONALLY PROTECTED IMAGES OF MINORS AS “SEXUAL OBJECTS” AND IN “SEXUALLY SUGGESTIVE” POSES HAD A DIRECT AND PALPABLE EFFECT ON THE MILITARY MISSION AND THEREFORE WAS ACTUALLY SERVICE DISCREDITING AS REQUIRED BY UNITED STATES v. WILCOX, 66 M.J. 442 (C.A.A.F. 2008).

 United States v. Warner, __ M.J. __, No. 13-0435/AR (C.A.A.F. May 20, 2012). 

CAAF today granted review in another case dealing with Judge Palmer’s now-infamous remarks.  United States v. Myrick, __ M.J. __, No. 13-0444/MC (C.A.A.F. May 16, 2013).  And CAAF granted review of a Humphries-type issue in United States v. Valentin, __ M.J. __, No. 12-0617/MC (C.A.A.F. May 16, 2013).  In both cases, CAAF directed that no briefs be filed.

CAAF today granted review of this issue:

WHERE THE ARTICLE 134 CHILD PORNOGRAPHY SPECIFICATIONS OF WHICH APPELLANT WAS CONVICTED DID NOT ALLEGE THAT THE IMAGES DEPICTED ACTUAL MINORS AND WHERE THE MILITARY JUDGE ADVISED APPELLANT DURING THE PROVIDENCE INQUIRY THAT “THERE IS NO REQUIREMENT THAT THE IMAGES IN THIS CASE INCLUDE ACTUAL IMAGES OF MINORS,” IS THE MAXIMUM AUTHORIZED CONFINEMENT FOR EACH SPECIFICATION LIMITED TO FOUR MONTHS?

United States v. Finch, __ M.J. __, N0. 13-0353/AF (C.A.A.F. May 16, 2013).  AFCCA’s unpublished decision in the case is available here.  The issue is similar to that in AFCCA’s recent published opinion in Slagle, which we noted here.

Insert familiar disclosure here.  I now have a 100% grant rate for supps using the phrase, “baby Wookiee.”

CAAF today granted review of two issues in United States v. Merritt, No. 13-0283/AF:

I.   WHETHER APPELLANT’S CONSTITUTIONAL RIGHT TO FAIR NOTICE THAT AN ACT IS CRIMINAL WAS VIOLATED IN SPECIFICATION 2 OF THE CHARGE, WHERE THE ALLEGED OFFENSE OCCURRED IN MAY 2006 BUT CONGRESS DID NOT CRIMINALIZE THE INTENTIONAL VIEWING OF CHILD PORNOGRAPHY UNTIL OCTOBER 2008.

II.  WHETHER APPELLANT’S DUE PROCESS RIGHT TO TIMELY APPELLATE REVIEW WAS VIOLATED WHERE THE AIR FORCE COURT DECIDED APPELLANT’S CASE ONE THOUSAND AND TWENTY-FOUR DAYS AFTER IT WAS DOCKETED.

AFCCA’s decision in the case, written by Senior Judge Roan the Great, is published at 71 M.J. 699.  Friend o’ CAAFlog Bill Cassara is Merritt’s civilian appellate defense counsel.

Yesterday, CAAF granted review of what looks like a Swift trailer, granting but ordering no briefs on this issue:   “WHETHER THE GOVERNMENT’S FAILURE TO ALLEGE THE TERMINAL ELEMENT IN SPECIFICATION 2 OF CHARGE III RESULTED IN MATERIAL PREJUDICE TO APPELLANT’S SUBSTANTIAL RIGHT TO NOTICE.”  United States v. Martinez, __ M.J. __, No. 11-0638/AR (C.A.A.F. March 27, 2013).  ACCA’s unpublished decision in the case is available here.  United States v. Martinez, No. ARMY 20090582 (A. Ct. Crim. App. Oct. 25, 2012).

Continuing with the “March Is Judge Palmer Month” theme, CAAF also granted review of another case challenging his impartiality, but ordered no briefs:  “AN ACCUSED HAS A CONSTITUTIONAL RIGHT TO AN IMPARTIAL JUDGE.  APPELLANT WAS SENTENCED BY A MILITARY JUDGE WHO LATER STATED THAT DEFENDANTS ARE GUILTY, REFERRED TO DEFENDANTS AS SCUMBAGS, AND STATED THAT DEFENDANTS NEED TO BE CRUSHED.  WAS APPELLANT DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO AN IMPARTIAL JUDGE?”  United States v. Tiger, __ M.J. __, No. 13-0269/MC (C.A.A.F. March 27, 2013).  NMCCA’s unpublished decision in the case is available here.  United States v. Tiger, No. NMCCA 201200284 (N-M. Ct. Crim. App. Nov. 30, 2012).

March appears to be “Palmer Month” for the military appellate courts.  CAAF today granted review of another case concerning whether Judge Palmer satisfied the impartiality standard to preside over the trial:

AN ACCUSED HAS A CONSTITUTIONAL RIGHT TO AN IMPARTIAL JUDGE.  APPELLANT WAS SENTENCED BY A MILITARY JUDGE WHO LATER STATED THAT DEFENDANTS ARE GUILTY, REFERRED TO DEFENDANTS AS SCUMBAGS, AND STATED THAT DEFENDANTS NEED TO BE CRUSHED.  WAS APPELLANT DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO AN IMPARTIAL JUDGE?

United States v. Pacheco, __ M.J. __, No. 13-0268/MC (C.A.A.F. March 22, 2013).  CAAF directed that no briefs would be filed.

CAAF also granted review of an interesting issue concerning a witness attendant in a child abuse case:

GENERALLY, OUTSIDE THE MILITARY JUSTICE SYSTEM, WITNESS ATTENDANTS MAY ACCOMPANY A CHILD ON THE WITNESS STAND IF THE PROSECUTION SHOWS GOOD CAUSE AND THE TRIAL JUDGE MAKES A FINDING OF COMPELLING OR SUBSTANTIAL NEED.  HERE, WITHOUT GOOD CAUSE SHOWN AND WITHOUT FINDINGS OF COMPELLING OR SUBSTANTIAL NEED, THE MILITARY JUDGE ALLOWED A VICTIM ADVOCATE TO SERVE AS A WITNESS ATTENDANT FOR A SEVENTEEN-YEAR-OLD; THEN THE MILITARY JUDGE REFERRED TO THE WITNESS ATTENDANT AS THE COMPLAINANT’S “ADVOCATE” BEFORE THE MEMBERS.  DID THIS PROCEDURE VIOLATE APPELLANT’S PRESUMPTION OF INNOCENCE AND RIGHT TO A FAIR TRIAL?

United States v. Brown, __ M.J. __, No. 13-0244/NA (C.A.A.F. March 22, 2013).  CAAF also ordered expedited briefing, suggesting that the court will hear the case during this oral argument season, which closes 15 May.  NMCCA’s unpublished opinion in the case is available here.

We’ve previously discussed the disturbing comments that a Marine Corps military judge made at a PME for summer funners, as summarized here by NMCCA:

During the PME, the military judge made various statements not in keeping with standards of judicial decorum. Two of the law students in attendance were concerned with the military judge’s comments and prepared statements reporting that the military judge referred to defendants as “scumbags,” made statements that Congress and the Commandant of the Marine Corps wanted more convictions, and that trial counsel should assume the defendant is guilty. Moreover, pertinent to the facts of this appeal, one law student wrote that the military judge, “said that if you are trial council [sic] and prosecuting a child pornography defendent [sic] and he gets off because of your incompetence you will go to hell;” but further adds that “I think he was trying to be humorous with this comment because he chuckled when he said it.”

United States v. Sanders, No. NMCCA 201200202, 2012 WL 5492306, at *1 (N-M. Ct. Crim. App. Nov. 13, 2012). 

NMCCA held that the military judge erred by making the comments and created an appearance of bias.  Id., 2012 WL 5492306, at *3.  But in a series of opinions, NMCCA held that the accused wasn’t prejudiced by them.  See, e.g., id.

Now CAAF has ordered a DuBay hearing:

On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, and Appellant’s motion to supplement the record, it is ordered that the motion to supplement the record is granted and that said petition is granted on the following issue:

AN ACCUSED HAS A CONSTITUTIONAL RIGHT TO AN IMPARTIAL JUDGE.  HERE, THE MILITARY JUDGE TOOK OVER THE DIRECT EXAMINATION OF A KEY WITNESS, MADE ERRATIC COMMENTS ON THE RECORD, ALLOWED MEMBERS TO CALL OUT QUESTIONS IN OPEN COURT, AND MADE COMMENTS AFTER TRIAL DEMONSTRATING HIS BIAS AGAINST ACCUSED GENERALLY.  DID THE MILITARY JUDGE’S ACTIONS PUT INTO DOUBT THE FAIRNESS AND IMPARTIALITY OF STAFF SERGEANT KISH’S COURT-MARTIAL?

The decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside, and the case is returned to the Judge Advocate General of the Navy for remand to an appropriate convening authority to order a hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), to make findings of fact and conclusions of law related to what, if any, statements the military judge made on or about June 21, 2012, at a Professional Military Education meeting with junior officers regarding the practice of military justice.  At the conclusion of the DuBay hearing, the record will be transmitted to the Court of Criminal Appeals for further review under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2006).  Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2006), shall apply.

United States v. Kish, __ M.J. __, No. 13-0104/MC (C.A.A.F. March 14, 2013) (summary disposition). 

CAAF also granted review of three other cases raising similar issues, including the Sanders case cited above.

On Tuesday, the Judge Advocate General of the Coast Guard certified this issue to CAAF:

WHETHER THE COAST GUARD COURT OF CRIMINAL APPEALS ERRED BY APPLYING THE PROVIDENCY REQUIREMENTS OF HARTMAN IN A CASE WHERE THE FACTS ELICITED DURING THE PROVIDENCY INQUIRY REVEALED THAT THE SEXUAL ACTIVITY FELL OUTSIDE OF THE CONSTITUTIONAL PROTECTIONS BOUNDED BY LAWRENCE v. TEXAS BECAUSE IT INVOLVED A SLEEPING VICTIM. 

United States v . Whitaker, __ M.J. __, No. 13-5004/CG (C.A.A.F. Feb. 5, 2013).  CGCCA’s unpublished decision in the case is available here.

On Wednesday, CAAF granted a cross-petition to consider this issue in Schell, No. 13-5001/AR:

WHETHER THE MILITARY JUDGE’S FAILURE TO DISCUSS WITH CROSS-APPELLANT THAT THE OFFENSE OF ATTEMPTED ENTICEMENT OF A MINOR REQUIRES A SUBSTANTIAL STEP TOWARD THE COMMISSION OF THE UNDERLYING SUBSTANTIVE OFFENSE PROVIDES A SUBSTANTIAL BASIS IN LAW TO QUESTION CROSS-APPELLANT’S PLEA.

United States v. Schell, __ M.J. __, No. 13-5001/AR (C.A.A.F. Feb. 6, 2013).

The Zee Man previously noted the Judge Advocate General of the Army’s certification of Schell here.  ACCA’s opinion is published at 71 M.J. 574.

On Monday, CAAF specified an additional issue in Kelly, No. 12-0524:

WHETHER THE EXAMINATION OF THE CONTENTS OF APPELLANT’S COMPUTER WAS AN UNLAWFUL INSPECTION UNDER M.R.E. 313(b).

We previously noted the granting of two issues in Kelly here.  ACCA’s opinion in the case is here.  Briefs from both parties are due by Valentine’s Day.  The case is being orally argued at the University of Arizona’s James E. Rogers College of Law  on 26 February.

CAAF granted review of three cases today — two Army and one Marine Corps.

In United States v. Jasper, No. 13-0013/AR, CAAF granted review of four issues — including an issue (Issue IV) that played a role in the Salyer case:  the cutoff age for child pornography under military law.

I.    WHETHER THE MILITARY JUDGE ERRED WHEN HE ALLOWED THE ACCUSER TO RECLAIM A REGULATORY PRIVILEGE AFTER PREVIOUSLY WAIVING THAT PRIVILEGE AND DISCLOSING THAT THE ACCUSER ADMITTED FABRICATING SOME OF THE ALLEGATIONS AGAINST APPELLANT.

II.  WHETHER THE ARMY COURT ERRED WHEN IT CREATED A CONSTITUTIONAL “KNOWING” ELEMENT TO MILITARY RULE OF EVIDENCE 510(a) REQUIRING A PRIVILEGE HOLDER TO BE INFORMED OF THE REGULATORY PRIVILEGE IN ORDER FOR THE DISCLOSURE TO BE DEEMED VOLUNTARY.

III. WHETHER THE GOVERNMENT’S FAILURE TO ALLEGE THE TERMINAL ELEMENT IN SPECIFICATION 1 OF CHARGE II AND THE SPECIFICATIONS OF THE ADDITIONAL CHARGE RESULTED IN MATERIAL PREJUDICE TO APPELLANT’S SUBSTANTIAL RIGHT TO NOTICE.

IV.  WHETHER THE MILITARY JUDGE ERRED IN INSTRUCTING THE PANEL MEMBERS THAT IN ORDER TO FIND APPELLANT GUILTY OF POSSESSION OF CHILD PORNOGRAPHY IN VIOLATION OF ARTICLE 134, CLAUSE 1 AND 2, THE IMAGES MUST BE OF A CHILD UNDER THE AGE OF EIGHTEEN, INSTEAD OF UNDER THE AGE OF SIXTEEN AS THE UCMJ DEFINES CHILD.

ACCA’s unpublished opinion in the case is available here.

Here’s the granted issue in United States v. Dalton, No. 13-0124/MC:

IN UNITED STATES v. JONES, THIS COURT RETURNED TO THE STRICT ELEMENTS TEST FOR DETERMINING THE EXISTENCE OF LESSER-INCLUDED OFFENSES.  MURDER AND VOLUNTARY MANSLAUGHTER REQUIRE THE INTENT TO KILL OR INFLICT GREAT BODILY HARM, BUT INVOLUNTARY MANSLAUGHTER REQUIRES CULPABLE NEGLIGENCE.  UNDER JONES, IS INVOLUNTARY MANSLAUGHTER A LESSER-INCLUDED OFFENSE OF EITHER MURDER OR VOLUNTARY MANSLAUGHTER?

NMCCA’s opinion in the case is published at 71 M.J. 632.

Finally, in United States v. Bennitt, No. 12-0616/AR, CAAF specified an addititional issue:

In Specification 2 of Charge I Appellant is charged with unlawfully killing Leah King while aiding and abetting Ms. King’s wrongful use of Oxymorphone, which is alleged to be an “offense” directly affecting the person of Ms. King.  Must Ms. King’s use of Oxymorphone be an “offense” to be legally sufficient to support the finding of guilty under Article 119(b)(2)?

We previously discussed the issue that CAAF granted in Bennitt on 19 September 2012.  An interesting aspect of Bennitt is that the specified issue uses a deep issue-like format. 

The Judge Advocate General of the Air Force today certified this issue to CAAF in Humphries:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN FINDING APPELLEE’S SENTENCE INAPPROPRIATELY SEVERE UNDER THE UNIQUE CIRCUMSTANCES OF THIS CASE.

AFCCA’s latest opinion in the case is available here.  [Insert familiar disclosure here.]

We’ve been following the case of United States v. Salyer closely for about three months now, see NMCCA opinion analysis here and Top 10 MilJus Story of 2012 post here.  And it looks like we’ll get at least another three months out of the story.  Here is a link to CAAF’s grant of review in the case.  As we noted before, the QP in the case is:

Under United States v. Lewis, A Case Is Dismissed With Prejudice When Unlawful Command Influence Results In The Recusal Of A Military Judge. Here, The Military Judge Recused Himself Because He Found That The Government’s Actions Made It Impossible For Him To Remain On The Case. The Government Complained To His Supervisor About A Ruling, Accessed His Service Record Without Permission And, With This Information, Moved For His Recusal. Should This Case Be Dismissed With Prejudice?

And here is a link to the supplement.

CAAF today granted review of this issue:

Whether Appellant was denied his Sixth Amendment right to confront his accuser when the military judge permitted testimonial hearsay in the form of SL’s statement to a physician.

United States v. Squire, __ M.J. __, No. 13-0061/AR (C.A.A.F. Jan. 10, 2013).  ACCA’s unpublished decision is available here.

SFC Squire is represented by friend o’ CAAFlog Bill Cassara.

CAAF’s daily journal is catching up on the holiday. From December 20:

No. 13-5002/CG.  U.S. v. Wilson MEDINA.  CCA 1325. Notice is hereby given that a certificate for review of the decision of the United States Coast Guard Court of Criminal Appeals was filed under Rule 22 this date on the following issues:

I.    WHETHER THE COAST GUARD COURT OF CRIMINAL APPEALS ERRED BY APPLYING THE PROVIDENCY REQUIREMENTS OF HARTMAN  IN A CASE WHERE THE FACTS ELICITED DURING THE PROVIDENCY INQUIRY REVEALED THAT THE SEXUAL ACTIVITY FELL OUTSIDE OF THE CONSTITUTIONAL PROTECTIONS BOUNDED BY LAWRENCE v. TEXAS BECAUSE IT INVOLVED A RECENT, PRIOR TRAINER-TRAINEE RELATIONSHIP.

II.   ASSUMING A HARTMAN INQUIRY IS REQUIRED, WHAT CONSTITUTES A SUFFICIENT COLLOQUY BETWEEN THE MILITARY JUDGE AND AN ACCUSED TO SUPPORT A PLEA OF GUILTY TO THE SPECIFICATION OF SODOMY UNDER THE STANDARD SET FORTH IN HARTMAN.

We previously discussed Medina here, after the CGCCA set-aside a plea of guilty to consensual sodomy because:

The court unanimously agreed that under United States v. Hartman, 69 M.J. 467 (C.A.A.F. 2011), the plea of guilty to consensual sodomy had to be set aside becuase the military judge didn’t adequately advise the accused about the zone of privacy recognized by Lawrence v. Texas and the Marcum factors that can overcome it in a military context.  The court split 2-1 on whether to order a new sentence hearing.  The majority opinion by Judge Duignan, joined by Chief Judge McClelland, remanded for a new sentence hearing.  In a separate opinion, Judge Havranek indicated he would have the court reassess the sentence rather than remand for a new sentencing hearing.

And Hartman (from the 2010 Term) is discussed here.

As most reasonable people would agree, Monty Python and the Holy Grail is one of the three best movies of all time. Remember the scene where  Eric Idle is chanting “Bring out your dead,” and John Cleese brings out a man who protests that he’s not dead? If so, you’ll remember that the scene ends with Idle turning the man into an actual corpse.  Today’s CAAF grant in United States v. Wilson brought that scene to mind.  Will Wilson end with CAAF playing Eric Idle’s role and Article 10 playing the role of the corpse?

From time to time, I’m asked to give military justice updates.  And when I do, I show a slide of a tombstone with “Article 10″ written on it.  Article 10 appeared to be dead letter in the wake of cases like United States v. Cossio , 64 M.J. 254 (C.A.A.F.2007), and United States v. Schuber, 70 M.J. 181 (C.A.A.F. 2011), in which trial judges found Article 10 violations only to have military appellate courts conclude that the government acted with reasonable diligence.  See also United States v. Thompson, 68 M.J. 308 (C.A.A.F. 2010).

But, lo and behold, here’s Article 10 protesting, “I’m not dead yet.”  Today CAAF granted review of this issue:

WHETHER APPELLANT WAS DENIED HIS RIGHT TO A SPEEDY TRIAL IN VIOLATION OF ARTICLE 10, UCMJ, WHEN THE GOVERNMENT FAILED TO ACT WITH REASONABLE DILIGENCE IN BRINGING HIM TO TRIAL.

United States v. Wilson, __ M.J. __, No. 13-0096/AR (C.A.A.F. Dec. 17, 2012).  ACCA had affirmed in a two-sentence opinion.

If CAAF does kill off Article 10, maybe we could build a large wooden badger . . . .