CAAFlog » October 2019 Term » United States v. Jessie

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

United States v. Jessie, No. 19-0192/AR (CAAFlog case page): Oral argument audio (wma)(mp3)

United States v. Muller, No. 19-0230/AF (CAAFlog case page): Oral argument audio (wma)(mp3)

The audio is also available on our oral argument audio podcast.

CAAF will hear oral argument in the Army case of United States v. Jessie, No. 19-0192/AR (CAAFlog case page), on Tuesday, November 5, 2019, at 9:30 a.m. The court granted review of three issues involving a policy (since rescinded) of the Joint Regional Confinement Facility (JRCF) at Fort Leavenworth, Kansas, whereby prisoners convicted of child sex offenses were prohibited from having any contact with children, including their own biological children:

I. Whether the Army court erred by considering military confinement policies but refusing to consider specific evidence of Appellant’s confinement conditions.

II. Whether the Army court conducted a valid Article 66 review when it failed to consider Appellant’s constitutional claims.

III. Whether Appellant’s constitutional rights were violated by a confinement facility policy that barred him from all forms of communication with his minor children without an individualized assessment demonstrating that an absolute bar was necessary.

Chief Warrant Officer (CW2) Jessie was convicted contrary to his pleas of not guilty, by a general court-martial composed of members, of two specifications of sexual assault of a child in violation of Article 120b, and was sentenced to confinement for four years, a reprimand, and to be dismissed. The Army CCA affirmed the findings and sentence in an unpublished en banc opinion, available here.

In that opinion, the CCA discussed Jessie’s complaint about a confinement policy that prohibited him from having any contact with children, including his own biological children. The CCA held that it could consider the complaint, but it declined to do so observing, in part:

[A]ppellant’s claim inevitably involves determining the outer limits of what is an acceptable prison policy for familial contact by convicted child sex offenders. That we might consider the claim does not mean we should. This is a claim we are poorly positioned to consider, and that within the structure of the military justice system is better entrusted to a determination by persons other than this Article I court.

United States v. Jessie, No. 20160187, slip op. at 10 (A. Ct. Crim. App. Dec. 28, 2018). CAAF then granted review.

Read more »

CAAF granted review in two cases in Tuesday, both from the Army. The first case is:

No. 19-0158/AR. U.S. v. Malcolm R. Turner. CCA 20160131. 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 granted on the following issue:

WHETHER THE SPECIFICATION OF CHARGE I ALLEGING AN ATTEMPTED KILLING FAILS TO STATE AN OFFENSE BECAUSE IT DOES NOT EXPLICITLY, OR BY NECESSARY IMPLICATION, ALLEGE THE ATTEMPTED KILLING WAS UNLAWFUL.

Briefs will be filed under Rule 25.

The CCA issued an unpublished decision (available here) that includes the following information:

the specification alleged that:

Appellant, did at or near Clarksville, Tennessee, on or about 1 January 2015, attempt to kill with premeditation, SPC CSG by means of shooting her with a loaded firearm and causing grievous bodily harm.

Appellant argues that the specification does not allege that the premeditated killing was unlawful. See Article 118(b)(1)(c), UCMJ; MCM (2012 ed.), pt. IV, ¶43.b. Appellant contends that servicemembers in the armed forces lawfully commit premeditated killings of enemy combatants on the battlefield. As such, a killing must be unlawful in order for it to be an offense under the UCMJ.

Slip op. at 13. The CCA rejected the claim, concluding that “the Specification of Charge I alleges words of criminality sufficient to inform appellant that he was charged with the offense of attempted premeditated murder,” and observing that “not since the Civil War has Clarksville, Tennessee been close to a combat zone where appellant might claim that an attempted premeditated killing of a fellow American soldier could have been lawful.” Slip op. at 15.

CAAF reviewed the need to explicitly allege words of criminality (in the context of Articles 133 and 134) in United States v. Reese, 76 M.J. 297 (C.A.A.F. 2017) (CAAFlog case page) (not addressed because case resolved on other grounds), and United States v. Voorhees, __ M.J. __, No. 18-0372/AF (C.A.A.F. 2019) (CAAFlog case page) (use of terms such as inappropriate or unprofessional found sufficient).

The second case is:

No. 19-0192/AR. U.S. v. Lamont S. Jessie. CCA 20160187. 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 granted on the following issues:

I. WHETHER THE ARMY COURT ERRED BY CONSIDERING MILITARY CONFINEMENT POLICIES BUT REFUSING TO CONSIDER SPECIFIC EVIDENCE OF APPELLANT’S CONFINEMENT CONDITIONS.

II. WHETHER THE ARMY COURT CONDUCTED A VALID ARTICLE 66 REVIEW WHEN IT FAILED TO CONSIDER APPELLANT’S CONSTITUTIONAL CLAIMS.

III. WHETHER APPELLANT’S CONSTITUTIONAL RIGHTS WERE VIOLATED BY A CONFINEMENT FACILITY POLICY THAT BARRED HIM FROM ALL FORMS OF COMMUNICATION WITH HIS MINOR CHILDREN WITHOUT AN INDIVIDUALIZED ASSESSMENT DEMONSTRATING THAT AN ABSOLUTE BAR WAS NECESSARY.

Briefs will be filed under Rule 25.

The CCA issued an unpublished but en banc decision, available here.

The case challenges a confinement policy of the Joint Regional Confinement Facility (JRCF) at Fort Leavenworth, Kansas, whereby prisoners convicted of child sex offenses were prohibited from having any contact with children, including their own biological children. The appellant challenged the application of the policy to him as a denial of his First and Fifth Amendment rights. The policy was changed after the challenge was made.

A majority of the CCA concluded that consideration of the issue (raised in post-trial submissions) “is not an appropriate use of our Article 66(c) authority.” Slip op. at 1. A number of judges dissented, however, on the basis that “the majority adopts an unnecessarily restrictive view of Article 66(c),” and that “by failing to address the alleged error, the majority conducts a flawed review of sentence appropriateness and post-trial delay.” Slip op. at 22.

CAAF recently addressed the Article 66 power of the CCAs, affirming that the power is exceptionally broad, in United States v. Chin, 75 M.J. 220 (C.A.A.F. 2016) (CAAFlog case page) (CCA may grant relief for waived error), and United States v. Kelly, 77 M.J. 404 (C.A.A.F. 2018) (CAAFlog case page) (CCA may reduce mandatory minimum punitive discharge as inappropriate).