CAAFlog » Courts of Criminal Appeals » CCA Opinions

One of the cases debated in the opposing views on civilianizing military justice is the recent unpublished decision of the Army CCA in United States v. Garcia, No. 20130660 (A. Ct. Crim. App. Aug. 18, 2015) (link to slip op.).

The appellant in Garcia – an Army staff sergeant – was accused of raping and forcibly sodomizing another staff sergeant, maltreating a third staff sergeant and two sergeants, and sexually harassing a chief warrant officer. The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of the rape and forcible sodomy of the staff sergeant and of the maltreatment of another staff sergeant and a sergeant (three victims in total), and was sentenced to confinement for five years, reduction to E-1, and a dishonorable discharge.

The Army CCA reversed the appellant’s convictions of rape and forcible sodomy (involving only one victim). Professor Joyner and LtCol Weirick asserted – in the opening sentence of their argument in favor of removing serious crimes from the military justice system – that the CCA’s decision “overturned a rape conviction on the grounds of unlawful command influence.”

But I disagree. The Army CCA’s decision isn’t about command influence. Rather, it’s about improper argument by a prosecutor.

Read more »

Back in July, a three-judge panel of the Navy-Marine Corps Court of Criminal Appeals issued a per curiam opinion that reversed convictions of rape and forcible sodomy because the panel found the evidence presented at trial to be factually insufficient. United States v. Clark, No. 201400232 (N-M. Ct. Crim. App. Jul. 14, 2015) (link to slip op.).

The convictions were based on allegations that the appellant used force to engage in vaginal and oral intercourse with a female victim who had very little memory of the encounter due to her state of intoxication at the time of the encounter. The only direct evidence against the appellant was (best I can tell) the woman’s testimony, consisting of “four segmented memories of what occurred with the appellant that night.” Slip op. at 4. Nevertheless, the appellant was convicted by a general court-martial composed of a military judge alone and sentenced to confinement for seven years, reduction to E-1, and a dishonorable discharge.

Considering the relatively little evidence presented at trial, and employing its unique factual sufficiency powers, the NMCCA found the evidence insufficient to sustain the convictions:

We are unconvinced by the record before us that the Government met their heavy burden of proving the required element of force for either offense. While SW’s description of appellant holding her by her arms provided some evidence of force, she could not link this action by the appellant to any further act, sexual or otherwise, and the disorganized, potentially non-sequential order of her memories prevents us from concluding that the charged forcible sexual acts necessarily followed.

Slip op. at 13. As a result, the CCA dismissed the charges with prejudice.

However, the appellant was not immediately released from confinement. Nor was he entitled to immediate release (discussed in depth below). Nevertheless, the appellant sought a writ of habeas corpus from the NMCCA ordering his immediate release. The CCA denied that writ in an en banc decision available here.  The appellant has since appealed that denial to CAAF, where I expect it will also be denied.

This isn’t to say that the appellant is not entitled to be released. Rather, he just has to wait a little bit longer.

Read more »

Two years ago, in United States v. Solomon, 72 M.J. 176 (C.A.A.F. 2013) (CAAFlog case page), CAAF held that a military judge erred in admitting prior allegations of sexual misconduct by an accused (as propensity evidence under Military Rule of Evidence 413) when the accused was acquitted of the prior allegations in a prior court-martial, because the judge “failed to mention or reconcile Appellant’s important alibi evidence [involving the prior allegations] and gave little or no weight to the fact of the prior acquittal.” 72 M.J. at 180.

Last month, in a published opinion in United States v. Bridges, __ M.J. __, No. 20120714 (A. Ct. Crim. App. Jul. 27, 2015) (link to slip op.), a three-judge panel of the Army CCA grapples with similar circumstances in that:

the United States relied in merits and sentencing, in part, upon a fifteen year old allegation of rape against appellant that had been subject to trial and resulted in acquittal.

Slip op. at 2.

The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of wrongful sexual contact, forcible sodomy, and assault consummated by a battery in violation of Articles 120, 125, and 128. He was sentenced to confinement for 6 years, total forfeitures, reduction to E-1, and a dishonorable discharge.

Read more »

In United States v. Salyer, 72 M.J. 415 (C.A.A.F. 2013) (CAAFlog case page), CAAF reversed a child pornography conviction, and dismissed the charge with prejudice, after finding the uncured appearance of unlawful command influence in the trial counsel’s access and use of a military judge’s personnel record to seek the judge’s recusal, and in a supervising counsel’s ex parte communication with the judge’s supervisor to complain about the judge’s rulings. The case was our #4 Military Justice Story of 2013.

In a recent decision in United States v. Hutchinson, No. 38503 (A.F. Ct. Crim. App. Jun. 29, 2015) (link to slip op.), the AFCCA addresses a somewhat similar set of facts. Raising concerns about speedy trial issues, the trial counsel (prosecutor) repeatedly asked the military judge to hold a session of court to address any speedy trial concerns. The judge repeatedly denied the Government’s request to go on the record. Then:

the chief regional military judge (CRMJ) for the central region (who was also the military judge’s supervisor and rater) called the military judge. According to the testimony of the military judge, his supervisor informed him that he had received a call from the staff judge advocate (SJA) to the special court-martial convening authority for this case. The CRMJ indicated the SJA said the military judge was being recalcitrant, and the CRMJ asked the military judge for information on the situation. Having just received two electronic requests for an Article 39(a), UCMJ, session from trial counsel, the military judge understood exactly what his supervisor was referring to, and he then explained the chronology of the case to the CRMJ. He felt the need to do this because his judicial temperament had been questioned to his supervisor. . . .

As he considered the matter after the call, however, the military judge became annoyed and unhappy. His impression was that the SJA was unhappy with his decision to not hold an Article 39(a), UCMJ, session and considered it important enough to call the military judge’s supervisor to complain about his performance and professionalism in a pending matter in an ongoing court-martial and to make the government’s strong desires known, all in an apparent attempt to influence the proceedings. This action by the SJA caused the military judge to “think twice” about his actions in denying the government’s prior requests.

A few hours later, the military judge received a motion from the government, asking again that he convene an Article 39(a), UCMJ, session. This time, the military judge granted the government’s request. . . .

Slip op. at 5-6. The military judge did not recuse himself but a different judge was detailed to the case because the original judge was transferring. The appellant ultimately pleaded guilty to conspiracy, wrongful sale of military property, larceny, and disorderly conduct, in violation of Articles 81, 108, 121, and 134, and was sentenced to confinement for 38 months and reduction to E-1. Pursuant to a pretrial agreement, the convening authority reduced the confinement to 19 months. Then, on appeal, the appellant asserted the existence of an appearance of unlawful command influence in the ex parte communications with the judge.

Writing for a three judge panel of the AFCCA, Senior Judge Hecker makes three conclusions: (1) that the issue of UCI was not (and could not be) waived by the appellant’s guilty pleas and pretrial agreement; (2) that the appellant has made a colorable showing of the appearance of unlawful command influence; (3) that the appearance is harmless beyond a reasonable doubt.

Read more »

In a published opinion in United States v. Rivaschivas, __ M.J. __, No. 20140471 (A. Ct. Crim. App. Jul. 24, 2015) (link to slip op.), a three-judge panel of the Army CCA finds that the appellant’s desertion of the Army in 2007 occurred during a time of war, meaning that the normal five-year statute of limitations does not apply.

Writing for the panel Judge Haight explains that:

Like the Court of Military Appeals in 1953, we rely on “[a] reading of the daily newspaper accounts of the conflict in [Iraq and Afghanistan]; an appreciation of the size of the forces involved; a recognition of the efforts, both military and civilian, being expended to maintain the military operations in that area; and knowledge of other well-publicized wartime activities” to convince us “beyond any reasonable doubt that we [were] in a highly developed state of war” in 2007. Bancroft, 3 U.S.C.M.A at 5-6, 11 C.M.R. at 5-6. Furthermore, we note historical facts such as the Iraq War troop surge of 2007, the continuous and multiple large-scale deployments to both Iraq and Afghanistan of combat units going back to 2003, the well-documented number of combat fatalities and injuries in that theater of operations during those campaigns, the tremendous financial cost of our ongoing military conflicts in the Middle East, the various legislative enactments and executive orders detailing our wartime footing in Iraq and Afghanistan, the creation of military commissions with the purpose of prosecuting violations of the law of war, and judicial decisions such as Hamdi v. Rumsfeld, 542 U.S. 507 (2004). The above is a non-exhaustive list which compels us to hold that appellant deserted the U.S. Army in a time of war for purposes of the statute of limitations under Article 43, UCMJ.

Slip op. at 5-6. The appellant deserted the Army in 2007 and remained absent until 2014. He was charged with desertion for this entire period, but pleaded guilty to only desertion until 2008. The Government did not attempt to prove desertion from 2008 to 2014, and the appellant was convicted of only desertion from 2007 to 2008.

The appellant did not affirmatively waive the five-year statute of limitations at trial, and then he asserted the statute of limitations on appeal as a basis to reverse his guilty plea. But because the CCA finds that “no time limitation applied to appellant’s war-time desertion, there was no bar to trial to waive, and consequently no inquiry [by the military judge] regarding the statute of limitations was necessary.” Slip op. at 6.

In an en banc opinion issued on Friday, the NMCCA finds ineffective assistance of counsel in the failure of a two-attorney defense team to move for suppression of the appellant’s statements to a Marine who questioned the appellant about his consumption of alcohol during a training event in violation of a battalion order. Judge King writes for the majority and explains that:

To be clear, we do not conclude that [the questioner] necessarily had a duty to warn the appellant of his rights under Article 31(b), nor do we hold as a matter of law that the appellant would have been successful had the motion been litigated. Instead, we find that a motion to suppress this case-dispositive evidence had a reasonable probability of success and therefore [trial defense counsels’] failure to litigate the issue is sufficient to undermine our confidence in the outcome of this court-martial.

United States v. Spurling, No. 201400124, slip op. at 12 (N-M. Ct. Crim. App. July 31, 2015) (link to slip op.) (marks omitted).

The appellant – a junior enlisted Marine – was charged with disobeying an order (to not drink alcohol during the training) and making a false official statement (for claiming that he had permission to drink alcohol when he was questioned). A special court-martial composed of members with enlisted representation acquitted the appellant of the orders violation, convicted him of making a false official statement, and sentenced him to reduction to E-1 and a bad-conduct discharge. The convening authority then suspended the bad-conduct discharge.

This is the NMCCA’s second en banc opinion in the case. In the first opinion (discussed in this post), a majority of the CCA found deficient performance by the defense but no prejudice, concluding that a motion to suppress would not have succeeded because the questioner was not acting in an official law enforcement or disciplinary capacity. However, in an action discussed here, CAAF summarily reversed and remanded for consideration in light of its decision in United States v. Jones, 73 M.J. 357 (C.A.A.F. Jul. 21, 2014) (CAAFlog case page). CAAF also took issue with the standard that the NMCCA applied to determine the merit of any motion to suppress.

On remand, the NMCCA again finds deficient performance in the failure of defense counsel to move for suppression (noting, as it did in the first opinion, that “TDC concede that they failed to recognize the issue”). Slip op. at 6-7. But the court reaches a different result regarding the merit of a motion to suppress, focusing its analysis on the second textual predicate of Article 31(b): that rights warnings are only required when a questioner “interrogates or requests any statement.” United States v. Jones, 73 M.J. 357, 361 (C.A.A.F. Jul. 21, 2014) (CAAFlog case page).

Read more »

In a published opinion in United States v. Jackson, __ M.J. __, No. 20120159 (A. Ct. Crim. App. May 18, 2015) (link to slip op.), the Army CCA finds plain error in the testimony of a criminal investigator about the appellant’s confession to sexually assaulting his teenage step-daugher:

The testimony presented SA K-O [the investigator -zds] as taking master’s level courses with CIA agents at the National Center for Credibility Assessment. She testified about her ability to discern verbal and nonverbal signs of deception. Special Agent K-O told the panel that she would move from interview to interrogation mode when she saw sufficient signs of deception. And, when questioning appellant, she did just that after appellant did not answer well in response to shock-absorbing questions. Special Agent K-O testified she told appellant she thought he was lying when he denied the allegations. While describing appellant’s eventual confession, SA K-O stated, “he got this really like faraway look in his eyes like he was reliving it.” Finally, SA KO told the panel that she cuts off denials when a suspect exhibits behavior leading her to believe otherwise.

Cumulatively, this testimony constituted human lie detector testimony.

Slip op. at 8. Human lie detector testimony was the issue in CAAF’s decision in United States v. Knapp, 73 M.J. 33 (C.A.A.F. Jan 15, 2014) (CAAFlog case page), and it is improper. In Jackson, the defense asserted that the appellant’s confession to sexually assaulting his step-daughter was false. The Army CCA reverses the appellant’s conviction for two specifications of abusive sexual contact with a child in part because the agent’s testimony went to “a central – if not the central – issue of the case: whether appellant’s confession to touching his stepdaughter was truthful.” Slip op. at 10. The CCA notes that:

While every interrogation and confession is unique, there was nothing special or unusual regarding appellant’s confession. As SA K-O noted, criminal accused often deny, then slowly make admissions, and eventually confess. The government can easily admit such confessions without superfluous testimony from CID agents acting as human lie detectors. The government is not permitted to present human lie detector testimony in rebutting defense attempts to show such confessions are involuntary, coerced, or false.

Slip op. at 12. Then, because the convening authority did not act until 739 days after the court-martial adjourned, the CCA limits “the possible punishment at a rehearing to a punitive discharge, two years confinement, forfeiture of all pay and allowances, and reduction to the grade of E-1,” unless new charges are added during the rehearing. Slip op. at 15-16.

Notably, the appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of conspiracy to violate a lawful order, willful disobedience of a superior commissioned officer, and the two specifications of abusive sexual contact with a child, and he was sentenced to confinement for four years and a dishonorable discharge. While the CCA sets aside the sex offense convictions, it affirms the conspiracy and disobedience convictions.

In a very interesting published opinion in United States v. Bass, __ M.J. __, No. 201400229 (N-M. Ct. Crim. App. May 27, 2015) (link to slip op.), a three judge panel of the NMCCA holds that the military judge erred in instructing the members on the offense of consensual sodomy in violation of Article 125 as a lesser included offense (LIO) of the offense of forcible sodomy in violation of Article 125 (the alleged offenses occurred before Article 125 was repealed and replaced in the FY14 NDAA). The CCA also holds that the judge did not err in instructing the members that they could use the charged sexual offenses as propensity evidence under Military Rule of Evidence 413 (a similar conclusion was recently reached by the Army CCA, as discussed here). The NMCCA reverses the appellant’s convictions for consensual sodomy, sets aside the sentence, and orders a sentence rehearing.

The appellant was charged with sexual assault of two female sailors, one of whom had a prior consensual relationship with the appellant. The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of member with enlisted representation, of sexual harassment and wrongful sexual contact involving one of the sailors, and of consensual sodomy (as a LIO of forcible sodomy) involving the other sailor (the one with whom he had the prior relationship). The appellant was sentenced to confinement for seven years, total forfeitures, reduction to E-1, and a dishonorable discharge.

At trial, without objection from the appellant’s defense counsel, the military judge instructed the members that consensual sodomy is a LIO of forcible sodomy:

The lesser included offense of non-forcible sodomy differs from the charged offense of forcible sodomy, in that non-forcible sodomy does not require you to be convinced beyond a reasonable doubt that the sodomy was committed by force and without the consent of the other person. However, in order to find the accused guilty of this lesser included offense, you must find beyond a reasonable doubt both that the physical act of sodomy occurred and that it involved public behavior; an act of prostitution; persons who might be injured, coerced or who were situated in relationships where consent might not easily be refused; or of a unique military interest.

Slip op. at 5 (quoting record). But the NMCCA finds that this instruction was erroneous because a conviction of consensual sodomy requires aggravating factors that remove the sexual activity from the liberty interest identified by the Supreme Court in Lawrence v. Texas, 539 U.S. 558 (2003). CAAF identified those factors in United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004), and it held in United States v. Castellano, 72 M.J. 217 (C.A.A.F. 2013) (CAAFlog case page), that determining the existence of such Marcum factors is a matter for the trier of fact.

In Bass, the NMCCA applies Castellano to conclude that the aggravating factors must be stated in the specification:

The CAAF’s binding interpretation that Marcum factors represent additional facts necessary to prove a criminal act of sodomy——as opposed to factors to guide judges in making legal determinations——constrains us to conclude that, as a result, they must be pleaded in a sodomy specification.

Slip op. at 7.

Read more »

In a published opinion in United States v. Jeter, __ M.J. __, No. 38511 (A.F. Ct. Crim. App. Jul. 1, 2015) (link to slip op.), a three judge panel of the AFCCA affirms a conviction for willfully damaging non-military property in violation of Article 109, holding that:

By definition, “damage” encompasses “physical injury to the property,” and we hereby construe “physical injury” to include the rendering of personal property at least temporarily useless for its intended purpose. When reading these concepts together, for purposes of Article 109, UCMJ, we find that “damage” consists of any physical injury to the property, to include any change to the condition of the personal property that renders it, at least temporarily, useless for its intended purpose.

Slip op. at 4. The facts of the case involve a very unhappy marriage, during which the appellant put sugar into the gas tank of his wife’s vehicle:

Suspecting the appellant had put sugar in her vehicle’s gas tank, his wife had her vehicle towed to an auto repair shop, where mechanics confirmed her suspicion. The service manager of the repair shop testified that sugar forms a gel-like substance when mixed with gasoline. If that substance passes through the vehicle’s fuel injectors, they will stick and prevent the car from running. The service manager testified that, at the time he removed the sugar from the vehicle’s tank, there had not yet been any physical injury to the vehicle itself, as the gel-like substance had not moved out of the gas tank. Until the sugar was removed, however, the vehicle could not be driven without causing physical injury to the vehicle. This raises the question whether sugar in the tank amounts to “damage” of the vehicle—nonmilitary property—within the meaning of Article 109, UCMJ. We conclude that it does.

Slip op. at 3-4.

Writing for the CCA, Chief Judge Allred explains that “the appellant’s placing sugar in the vehicle’s gas tank amounted to “damage” within the meaning of Article 109, UCMJ—as it changed the condition of the vehicle rendering it temporarily useless for its intended purpose.” Slip op. at  5.

In a published opinion in United States v. Borden, __ M.J. __, No. 20130493 (Jul. 6, 2015) (link to slip op.), a three-judge panel of the Army CCA holds that:

[W]here the government elects to serve post-trial papers by certified mail, service of such papers is complete upon the day the papers arrive at an accused’s last known-address.

Slip op. at 6. The case is particularly interesting because it involves a soldier whose sentence included a bad-conduct discharge, but whose location was seemingly unknown to military authorities (the record was mailed to his excess leave address, but was never claimed). Because a punitive discharge may not be executed until appellate review is complete, the appellant was presumably still on active duty at the time of the service (though in a no-pay-due status).

The CCA’s conclusion that actual receipt is not necessary to accomplish actual service of the record of trial seems to give the Army a pass for losing track of the appellant’s whereabouts.

In a published opinion in United States v. Pease, __ M.J. __, No. 201400165 (N-M. Ct. Crim. App. Jul. 14, 2015) (link to slip op.), the Navy-Marine Corps CCA reverses convictions for sexual assault and abusive sexual contact, finding that the Government failed to prove that the intoxicated victims were incapable of consenting and that the appellant knew or reasonably should have known that they were incapable of consenting.

The case involves two female victims: S.K. and B.S. Both were subordinates of the appellant, and both had (separate) sexual encounters with the appellant after drinking significant amounts of alcohol. The encounter with S.K. occurred in December 2012, and the encounter with B.S. occurred in January 2014. Both women had fragmentary memories of the encounters the mornings after. But the morning after her encounter with the appellant, B.S. was awoken by S.K., and:

IT2 B.S. told ITSN S.K. about what had transpired between her and the appellant. ITSN S.K. then relayed to IT2 B.S. what had happened between herself and the appellant the previous month. They decided IT2 B.S. should report she had been assaulted. After IT2 B.S. finished her report to a victim advocate, ITSN S.K., on IT2 B.S.’s urging, reported her alleged assault as well.

Slip op. at 9. The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of fraternization in violation of Article 92 and of sexual assault and abusive sexual contact in violation of Article 120 (2012). He was sentenced to confinement for six years and a dishonorable discharge.

Writing for a three-judge panel of the NMCCA, Senior Judge Brubaker finds that the sexual assault and sexual contact convictions are factually insufficient, and the court sets aside those findings of guilty. The court affirms the fraternization convictions and remands the case for a sentence rehearing.

Read more »

Last term, in the companion cases of United States v. McPherson, 73 M.J. 393 (C.A.A.F. Aug. 21, 2014) (CAAFlog case page), and United States v. Wilson, 73 M.J. 404 (C.A.A.F. Aug. 21, 2014) (CAAFlog case page), CAAF held that the Article 12 prohibition against confining service members in immediate association with non-service member aliens applies when a service member is confined in a civilian facility within the United States. CAAF also held that a service member must exhaust all administrative remedies prior to seeking judicial relief for a violation of that prohibition. CAAF then denied relief in both cases, holding in McPherson that the appellant failed to exhaust his administrative remedies, and finding no violation of Article 12 in Wilson because the appellant was confined alone.

Notably, both cases were certified to CAAF by the Judge Advocate General of the Air Force in order to define the reach of Article 12 (in part because of the Air Force relies heavily on civilian confinement facilities). And a curious twist to Wilson was that the appellant never asserted a violation of Article 12. Rather, he asserted that he was subjected to cruel and unusual punishment, in violation of Article 55, UCMJ, and the Eighth Amendment, because he was segregated from other inmates while confined in a civilian facility (presumably to avoid any Article 12 issue).

The Air Force CCA rejected Wilson’s claims for relief (twice). But now that CCA revisits the issue raised in Wilson. In United States v. Gay, __ M.J. __, No. 38525 (A.F. Ct. Crim. App. Jun. 12, 2015) (link to slip op.), the AFCCA holds that the appellant’s confinement in solitary confinement (where he was alone 23 hours per day, and suffered other administrative hardships) in a civilian facility, imposed after he complained of an Article 12 violation, was not cruel and unusual punishment, but is deserving of relief under the CCA’s Article 66(c) sentence-appropriateness power.

Read more »

In an unpublished in United States v. Lefevers, No. 201400312 (N-M. Ct. Crim. App. Jun. 18, 2015) (link to slip op.), a panel of the NMCCA splits 2-1 to affirm the sentence of confinement for 30 months and a bad-conduct discharge, adjudged at a general court-martial after the appellant pleaded guilty to making a false official statement, aggravated assault, and child endangerment, in violation of Articles 107, 128, and 134.

The appellant’s misconduct primarily involved this gruesome incident:

On the morning of 21 January 2013, the appellant was caring for his two-year-old step-daughter CW while his wife, CW’s mother, went to work. To help him sleep, the appellant had taken Benadryl the night before and was still asleep when his wife left for work between 0400 and 0500 that morning. What happened next is detailed best in the appellant’s stipulation of fact:

I was awoken by [CW], my step-daughter. I was so angry that I grabbed [CW] by the hair and threw her down the stairs and she hit the wall . . . head first and I heard a thud as her cheek and side of her head hit the wall. I remember standing with a lump of [CW’s] hair in my right hand. I flushed the hair down the toilet in the upstairs bathroom because I didn’t want to look at it. [CW] was crying really loud. I could tell that she was scared and in pain. I then went down the stairs and grabbed her by one arm . . . and carried her back up the stairs and into the master bedroom and laid her on the bed for several minutes. [CW] continued to cry for what seemed like 10-15 minutes, and I was walking around the bedroom trying to calm down. I knew she was hurt and should get medical attention, but I was worried that I would get into trouble for hurting her.

The appellant then called his wife and attempted to console CW while waiting for his wife to return home. When his wife returned home, he told her that CW had accidentally fallen down the stairs.

The appellant and his wife then took CW to the hospital. . .

Slip op. at 3. The facts that split the CCA involve the injuries that the appellant duffered during two combat deployments:

The appellant enlisted in the Marine Corps in 2007 at the age of 19. His first deployment to Afghanistan came in September 2010 and lasted until April 2011, where he served as a machine gunner. During this deployment the appellant engaged in “hundreds” of firefights with the enemy.

After this deployment, the appellant began exhibiting symptoms of post-traumatic stress disorder (PTSD). The appellant nonetheless deployed to Afghanistan for a second time from 24 February 2012 until 9 September 2012, during which the appellant’s unit was required to medically evacuate countless wounded civilian Afghan children who fell victim to improvised explosive devices. Moreover, the appellant’s unit engaged in several firefights, including a six-hour battle with the Taliban, where the appellant displayed exceptional courage, skill, and leadership.

After returning from this deployment in September 2012, the appellant’s PTSD symptoms worsened, resulting in his chain of command cancelling his orders for a third deployment to Afghanistan so that they could “keep an eye on him.”

Slip op. at 2. The incident with the appellant’s stepdaughter occurred approximately four months after the appellant returned from the second deployment.

Read more »

In two recent decisions the Army and Air Force CCAs analyzed the military-specific rule of completeness, Military Rule of Evidence 304(h). I last analyzed this rule in this post.

In United States v. Jnbaptiste, No. 20121113 (A. Ct. Crim. App. Apr. 14, 2015) (link to slip op.), the Army CCA finds no error in the military judge’s restriction of the defense cross-examination of the appellant’s wife. The restriction prevented the defense from eliciting the appellant’s denial when his wife questioned him about their daughter’s allegation of sexual abuse. The appellant was convicted of sexually abusing the daughter.

In United States v. Rosales, __ M.J. __, No. 38502 (A.F. Ct. Crim. App. Jun. 17, 2015) (link to slip op.), the Air Force CCA finds error but no prejudice in the military judge’s application of M.R.E. 412 (the rape shield rule) to prevent the defense from introducing portions of the appellant’s statements to investigators regarding his knowledge of his wife’s extra marital sexual activities. However, the appellant was permitted to cross-examine his wife about those same activities. The appellant was convicted of assaulting and attempting to rape his wife.

Read more »

The Air Force CCA reached two interesting conclusions in United States v. Bischoff, __ M.J. __, No. 37731 (A.F. Ct. Crim. App. Feb. 19, 2015) (link to slip op.). The first involves an issue of member bias; the second involves a question of prejudice for post-trial delay where the appellant’s sentence included a year of confinement, the appellant served all of the confinement, the CCA ordered a sentence rehearing, and then appellant received a sentence that included no confinement.

Read more »