CAAFlog » October 2017 Term » United States v. Jerkins

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

United States v. Jerkins, No. 17-0203/AR (CAAFlog case page): Oral argument audio.

United States v. Acevedo, No. 17-0224/AR (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the Army case of United States v. Jerkins, No. 17-0203/AR (CAAFlog case page), on Tuesday, November 28, 2017, at 9:30 a.m.

The appellant is an Army major (O-4) who was convicted of assault consumated by battery upon a child, in violation of Article 128, for hitting his three-year-old step-son with a belt. The members sentenced him to confinement for six months and a dismissal.

The defense called multiple witnesses during the sentencing phase of the court-martial to testify about Jerkins prior good service, including three colonels and two retired major generals. In rebuttal the prosecution offered into evidence a General Officer Memorandum of Reprimand (GOMOR) that was issued approximately two weeks before trial.

A GOMOR is an administrative reprimand that is ostensibly non-punitive and may be issued summarily by certain officials (reprimands are also authorized punishments under the UCMJ, but that requires formal proceedings). See Army Regulation 600-37 (available here). A GOMOR may – but need not necessarily – be filed in a soldier’s Official Military Personnel File, which is the permanent record of the soldier’s service. Under R.C.M. 1001(b)(2) the prosecution may then “obtain and introduce from the personnel records of the accused evidence of the . . . past military efficiency, conduct, performance, and history of the accused.”

The GOMOR issued to Jerkins reprimanded him for alleged fraternization with an enlisted soldier; specifically, Jerkins’ wife (at the time of trial), who was an active duty specialist (E-4) when they met and married, and who was voluntarily discharged before she gave birth to their child 11 months after the marriage. The GOMOR concluded:

You have failed to live up to the Army values and you have betrayed our trust. I have serious doubts regarding your ability for continued service in the United States Army . . .

App. Br. at 4.

The defense objected to admission of the GOMOR, the military judge overruled the objection, and the Army CCA issued an opinion that did not address the issue. CAAF then granted review to determine:

Whether the military judge abused her discretion by allowing a general officer memorandum of reprimand into sentencing evidence, where the reprimand was issued two weeks before the court-martial and contained highly prejudicial and misleading language.

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CAAF granted review in three cases last week. All are from the Army:

No. 17-0187/AR. U.S. v. Brian G. Short. CCA 20150320. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER GOVERNMENT COUNSEL COMMITTED PROSECUTORIAL MISCONDUCT WHEN THEY MADE IMPROPER ARGUMENT AFTER REPEATEDLY ELICITING INADMISSIBLE TESTIMONY.

Briefs will be filed under Rule 25.

The CCA’s opinion in Short is available here.

No. 17-0200/AR. U.S. v. Carlos A. Gonzalez-Gomez. CCA 20121100. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following 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.

Briefs will be filed under Rule 25.

The CCA’s opinion in Gonzalez-Gomez is available here.

No. 17-0203/AR. U.S. v. David L. Jerkins. CCA 20140071. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY ALLOWING A GENERAL OFFICER MEMORANDUM OF REPRIMAND INTO SENTENCING EVIDENCE WHERE THE REPRIMAND WAS ISSUED TWO WEEKS BEFORE THE COURT-MARTIAL AND CONTAINED HIGHLY PREJUDICIAL AND MISLEADING LANGUAGE.

Briefs will be filed under Rule 25.

The CCA’s opinion in Jerkins is available here.

CAAF also docketed a petition for a writ of prohibition in United States v. Katso (CAAFlog case page):

No. 17-0310/AF. Joshua Katso, Petitioner v. Christopher F. Burne, Lieutenant General, United States Air Force, in his official capacity as Judge Advocate General of the United States, and Katherine E. Oler, Colonel, United States Air Force, in her official capacity as Chief of the United States Air Force Government Trial and Appellate Counsel Division. CCA 38005. Notice is hereby given that a petition for extraordinary relief in the nature of a petition for writ of prohibition was filed under Rule 27(a) on this date.

Finally, CAAF docketed a writ petition in Bergdahl. As the seventh such petition by an increasingly desperate Bergdahl (whose trial is expected to occur this summer), its filing is just barely noteworthy.