The DoD extended the deadline for the Military Justice Review Group to complete its work. The new deadline for the MJRG report recommending changes to the UCMJ has been extended to March 25, 2015, and the deadline for the report recommending changes to the MCM has been extended to September 21, 2015. Federal register notice available here.

A meeting of the Judicial Proceedings Panel will be held on Friday, September 19, 2014. The Public Session will begin at 8:45 a.m. and end at 5:00 p.m. The meeting will occur at the Holiday Inn, Glebe and Fairfax Ballrooms, 4610 N. Fairfax Drive, Arlington, Virginia 22203. Federal register notice available here.

The DoD published proposed rulemaking to update the Department’s FOIA program. Federal register notice available here. Public comments are due by November 3, 2014.

In United States v. Wilson, 66 M.J. 39 (C.A.A.F. 2008) (link to slip op.), a divided CAAF concluded that the defense of mistake of fact as to age does not apply to a charge of non-forcible sodomy with a child under the age of 16 in violation of Article 125 (of note, Article 125 was amended by section 1707 of the FY14 NDAA, eliminating non-forcible sodomy as an offense). But Congress has long provided a statutory defense of mistake of fact as to age in a prosecution for certain sexual offenses with a child in violation of Article 120, enacting the first such defense in Section 1113 of the National Defense Authorization Act for 1996, 110 Stat. 186, 462 (1996). Such a defense provides that a service member accused of a sexual act with a child under the age of 16 is not guilty if the accused reasonably (but wrongly) believed that the child was at least 16 and the child was in fact at least 12.

This creates the possibility that a service member who commits sexual activity with a child under the age of 16 while under the reasonable but mistaken belief that the child is over 16 may be charged with an offense under Article 120 for which there is a defense of mistake, with an offense under Article 125 for which there isn’t a defense of mistake, or with both.

It’s both charges in the ongoing Army court-martial of Private Hernandez: sexual assault of a child, sexual abuse of a child, and sodomy with a child in violation of Articles 120b (2012) and 125. The case is ongoing because the Army CCA has now issued two opinions on a Government petition for extraordinary relief, first denying the petition in an unpublished summary disposition by a three-judge panel, and then granting the petition in the form of a writ of prohibition in an en banc published opinion. United States v. Gross, Military Judge, and Hernandez, Real Party in Interest, No. 20140293 (A. Ct. Crim. App. Jun. 5, 2014) (per curiam) (Hernandez I) (link to unpub. op.), rev’d on recon. en banc, __ M.J. __, (A. Ct. Crim. App. Aug. 28, 2014) (Hernandez II) (link to slip op.).

At issue is the action of the military judge on the accused’s efforts to have the defense of mistake of fact as to age applied to the sodomy charge, despite CAAF’s opinion in Wilson.

Read more »

The new LtCol told Marine Times that he was promoted on time and that his promotion was never delayed, or was there an effort to remove him from the list.

CAAF will hear the first oral argument of the September 2014 Term in the Marine Corps case of United States v. Vargas, No. 14-6009/MC (CAAFlog case page), on Tuesday, September 9, 2014. The court will review the decision of the Navy-Marine Corps CCA that granted a Government interlocutory appeal and vacated a military judge’s rulings that denied the Prosecution an overnight recess during trial and rested its case.

Appellant is a Marine Staff Sergeant charged with a single specification of assault consummated by a battery. Trial before a special court-martial with members began on October 22, 2013, and was docketed for three days. Government counsel planned to call seven witnesses; four on the first day and three on the second day. However, the empanelment of members and the testimony of the first four witnesses went faster than anticipated, and by mid-afternoon the Government counsel was unprepared to present any more evidence until the second day.

So Government counsel requested a continuance until the following morning. The Defense opposed the continuance and the military judge denied it. Government counsel then gave notice of intent to appeal the judge’s ruling. This notice is supposed to stop the proceedings (pursuant to R.C.M. 908(b)(1)), but the military judge kept going, including resting the Government’s case and denying a Defense motion for a finding of not guilty pursuant to R.C.M. 917. The parties began to discuss instructions for the members before the military judge finally stopped the proceedings for the Government’s appeal.

That evening Government counsel changed course, sending the judge an email disclaiming any intent to appeal the denial of the continuance and asking for reconsideration of the ruling that the Government’s case was rested. The next day the military judge heard the Government’s motion for reconsideration and reaffirmed her rulings. The Government then gave a second notice of intent to appeal, and an interlocutory appeal under Article 62 followed.

A three-judge panel of the NMCCA granted that appeal, vacating the judge’s rulings, after finding that it had jurisdiction to do so under Article 62 (which authorizes Government appeals in various situations including of “an order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.” Article 62(a)(1)(B)). The CCA determined that:

By denying the trial counsel’s motion for a recess until the next morning and then sua sponte resting the Government’s case, the military judge effectively denied the Government the opportunity to present critical testimony that is substantial proof of a fact material in the proceeding.

United States v. Vargas, No. 201300426, slip op. at 9 (N-M. Ct. Crim. App. Feb. 28, 2014) (discussed here) (link to unpub. op.). The court then analyzed the circumstances (giving surprisingly little deference to the trial judge) and concluded:

In light of the circumstances of this case, we conclude that the military judge’s action in denying the Government a brief recess during trial and then sua sponte, over objection, resting the Government’s case was a clear abuse of discretion.

Slip op. at 10. In my analysis of the CCA’s opinion I discussed two potential issues: whether the CCA had jurisdiction and whether the court gave the required degree of deference to the trial judge’s rulings. A few months later Appellant sought review by CAAF, identifying these same two issues, and in July the court granted review of the jurisdictional question:

Whether the Navy-Marine Corps Court of Criminal Appeals erroneously interpreted Article 62, UCMJ, to allow a Government appeal of the military judge’s denial of a continuance request as well as the military judge’s order resting the Government’s case.

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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.

Read more »

CAAF heard oral argument in 4 cases with issues certified by one of the Judge Advocates General under the authority granted in Article 67(a)(2) (Finch, Hines, McPherson, and Wilson). But that only tells part of the story, as the court resolved another 7 certified cases by summary disposition (Arriaga, Burns, Lindgren, McDowell, McIntyre, Seton, and Sickels). In total the court decided 11 cases with certified issues this term.

Of those 11 cases, 9 (82%) were from the Air Force. That’s in part due to the Air Force certification binge earlier this spring that prompted me to write about the appearance of bias in the certification of cases by the Judge Advocate General of the Air Force. The other two cases were from the Army.

The Government won in only 2 out of the 11 certifications (18%): Hines (an Army case where the court unanimously sided with the Government) and Finch (an Air Force case where the court was sharply divided). Both of those cases were heard at oral argument. Notably, Finch involved a cross-certification; the JAG certified an issue after CAAF granted review of the CCA’s decision.

The court specified issues for oral argument in two cases (Moon and Moss), both from the Army. The specified issues were dispositive in both cases.

Representation by each court of criminal appeals at CAAF was skewed towards the Army and Air Force courts (since, as noted in Part I, CAAF didn’t hear oral argument in any Navy cases this term). Of the 32 cases heard at oral argument:

  • 15 were from the Air Force CCA.
  • 14 were from the Army CCA.
  • 2 were from the Navy-Marine Corps CCA.
  • 1 was from the Coast Guard CCA.

Of these:

  • The Air Force CCA was reversed in 6 out of 15 cases (40%).
  • The Army CCA was reversed in 6 out of 14 cases (43%).
  • The Navy-Marine Corps CCA was reversed in 0 out of 2 cases.
  • The Coast Guard CCA was reversed in 0 out of 1 case.

Civilian counsel argued only 4 out of the 32 cases (12.5%) argued at CAAF this term (down from 6 out of 36 last year – 17%): Leahr, MacDonald, Merritt, and Winckelmann. Of these, the Government won in 2 (50%).

In cases argued by military defense counsel, the Government won 17 out of 28 (61%).

Of the 11 cases where military defense counsel argued and won:

  • 7 were Air Force cases (Elespuru, Janssen, Knapp, McPherson, Paul, Wicks, and Wilson).
  • 4 were Army cases (Davenport, Flesher, Moon, and Warner).

So the success rates for each of the four appellate defense divisions was:

  • Air Force Appellate Defense: 7 out of 15 (47%).
  • Army Appellate Defense: 4 out of 14 (29%).
  • Coast Guard Appellate Defense: 0 out of 1 (0%).
  • Navy-Marine Corps Appellate Defense: 0 out of 2 (0%).

Last year’s numbers are here.

Unlike the voting blocs post of years past, this year I’m going to consider each judge individually.

Chief Judge Baker wrote a total of 20 opinions this term: 7 opinions of the court, 4 concurring opinions, and 9 dissenting opinions. He was in the majority in 22 out of 32 cases (69%), concurring in 4 cases. He voted for the Government in 23 out of 32 cases (72%), dissenting from 3 of the Government’s 19 (16%) victories and concurring in 2 of them.

Judge Erdmann wrote a total of 5 opinions this term, all of them opinions of the court. He was in the majority in 30 out of 32 cases (94%), joining the opinion of the court in all of them. He voted for the Government in 17 out of 32 cases (53%), dissenting from 2 of the Government’s 19 victories (10.5%) (his only 2 dissents).

Judge Stucky wrote a total of 14 opinions this term: 9 opinions of the court, 3 concurring opinions, and 2 dissenting opinions. He was in the majority in 30 out of 32 cases (94%), concurring in 3 of them. He voted for the Government in 17 out of 32 cases (53%), dissenting from 2 of the Government’s 19 victories (10.5%) (his only 2 dissents) and concurring in 2 of them.

Judge Ryan wrote a total of 11 opinions this term: 7 opinions of the court, 1 concurring opinion, and 3 dissenting opinions. She was in the majority in 28 out of 32 cases (87.5%), concurring in 1 of them. She voted for the Government in 19 out of 32 cases (59%), dissenting from 2 of the Government’s 19 victories (10.5%) and concurring in 1 of them.

Judge Ohlson joined the court a few months into the term, and he participated in only 23 of the court’s 32 cases with authored opinions. Judge Ohlson wrote a total of 7 opinions: 4 opinions of the court and 3 dissenting opinions. He was in the majority in 20 out of 23 cases (87%), concurring in one of them. He voted for the Government in 12 out of 23 cases (52%). But Judge Ohlson participated in only 13 of the Government’s 19 victories, dissenting from 2 (15% of the 13) and concurring in 1.

Senior Judges Effron and Cox also participated in cases this term:

Senior Judge Effron participated in 8 of the court’s 32 cases with authored opinions this term (25%). He wrote 1 dissenting opinion. He was in the majority in 6 out of 8 cases (75%), concurring in none. He voted for the Government in 4 out of 8 cases (50%), and dissented from 2 Government victories.

Senior Judge Cox participated in 1 case this term, voting for the Defense and joining Chief Judge Baker’s opinion of the court in Wicks.

Of the 32 authored opinions of the term, 12 were unanimous (no separate opinions). The Government prevailed in 9 of these 12. An additional 6 cases involved only separate concurring opinions, for a total of 18 cases with no dissents (56% of the total of 32 cases). Of these 18 cases, the Government prevailed in 12 (66%).

The other 14 cases involved a total of 18 separate dissenting opinions. Broken down by judge:

  • Chief Judge Baker dissented 10 times and wrote 9 dissenting opinions.
  • Judge Ryan dissented 4 times and wrote 3 dissenting opinions.
  • Judge Ohlson dissented 3 times and wrote dissenting opinions in all 3 cases.
  • Judge Stucky dissented 2 times and wrote dissenting opinions in both cases.
  • Senior Judge Effron dissented 2 times and wrote a dissenting opinion in 1 case.
  • Judge Erdmann dissented 2 times but wrote dissenting separate opinions.

These dissents favored the Government as follows:

  • Chief Judge Baker sided with the Government in 7 out of 10 dissents (70%).
  • Judge Ryan sided with the Government in 2 out of 4 dissents (50%).
  • Judge Ohlson sided with the Government in 1 out of 3 dissents (33%).
  • Judge Stucky sided with the Government in neither of his 2 dissents (0%).
  • Senior Judge Effron sided with the Government in neither of his 2  dissents (0%).
  • Judge Erdmann sided with the Government in neither of his 2 dissents (0%).

These numbers count the dissents by Judges Stucky and Ryan in Treat as siding with the Defense.

Of the 14 cases with dissents, only 5 cases involved lone dissenters. Of these 5 cases, Chief Judge Baker was the lone dissenter in 4 (Warner, Wilson, McPherson, and Davenport), siding with the Government in each case. Judge Ohlson was the lone dissenter in 1 (Frey), siding with the Defense. No other judge was a lone dissenter.

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

Chief Judge Baker wrote for the court in 7 cases, of which only 1 (14%) had a dissenter. That was Judge Ohlson in Frey.

Judge Ryan wrote for the court in 7 cases, of which 2 (29%) had dissenters. Chief Judge Baker dissented in both of these cases and wrote separately in both. Judge Ohlson dissentedt in 1, joining the Chief Judge’s opinion.

Judge Erdmann wrote for the court in 5 cases, of which 2 (40%) had dissenters. Senior Judge Effron dissented in both cases, writing 1 separate opinion. Chief Judge Baker dissented in 1 case and wrote a separate opinion. Judge Ryan also dissented in 1 case and wrote separately.

Judge Ohlson wrote for the court in 4 cases, of which 2 (50%) had dissenters. Judge Ryan dissented in both cases, writing separately in both. Chief Judge Baker and Judge Stucky each dissented in 1 case, and each wrote a separate opinion.

Judge Stucky wrote for the court in 9 cases, of which 7 (78%) had dissenters. Chief Judge Baker dissented in all 7, writing a separate opinion in 6. Judge Ohlson dissented in 2, writing separate opinions in both. Judges Erdmann and Ryan each dissented in 1, but neither wrote separately.

Looking at last year’s dissent stats, I note that last year Chief Judge Baker was tied with Judge Stucky for most number of dissents (7 each) and Chief Judge Baker was the most likely to draw dissents when he wrote for the court (5 out of 8 – 62.5%). But this year, while Chief Judge Baker dissented more than any other judge (10 in total – authoring separate opinions in 9), he was least likely to draw dissents when he wrote for the court.

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

CAAF heard oral argument in 32 cases this term and issued 32 authored opinions of the court.

The court also issued summary dispositions in 67 cases, including 11 cases involving the comments of Marine Corps military judge Lieutenant Colonel Palmer (discussed here) and 16 cases involving the appointment of Mr. Lawrence Soybel to the Air Force Court of Criminal Appeals (see United States v. Janssen, 73 M.J. 221 (C.A.A.F. Apr. 15, 2014) (CAAFlog case page)).

Note: The summary dispositions total does not include Friday, August 29, 2014 (the last business day of the term) because the online version of CAAF’s daily journal hasn’t yet been updated. I will remove this note (and update these numbers if necessary) when the journal is updated.

Of the 32 authored opinions:

  • Judge Stucky wrote 9.
  • Judge Ryan wrote 7.
  • Chief Judge Baker wrote 7.
  • Judge Erdmann wrote 5.
  • Judge Ohlson wrote 4.

Judge Ohlson joined the court mid-term (discussed here), and Senior Judges Effron and Cox both participated in cases argued before Judge Ohlson’s confirmation. Senior Judge Effron participated in 8 cases and Senior Judge Cox participated in 1 case. Neither Senior Judge authored a majority opinion, however Senior Judge Effron did author a dissenting opinion (in Finch).

The service breakdown reveals an astonishing fact: CAAF did not hear oral argument or issue an authored opinion in a single Navy case. Of the 32 oral arguments and authored opinions:

  • Air Force:15 (47%).
  • Army: 14 (44%).
  • Coast Guard: 1 (3%).
  • Marine Corps: 2 (6%).
  • Navy: 0 (0%).

CAAF did issue summary dispositions in 3 Navy cases, deciding all 3 in favor of the Government. Of these 3 summary dispositions, 2 involved administrative issues (correcting the promulgating order in one case (York) and sealing an exhibit in the other (Mora)), and the third (Short) involved a question of the completeness of the record.

The court had a fairly active extraordinary writ docket, with 23 petitions (19 writ-appeals, 2 habeas petitions, and 2 petitions for mandamus). CAAF denied all of these petitions except for one: United States v. Arness, No. No. 14-8014/AF (an Air Force case in which it ordered that briefs be filed (discussed here)).

Calling winners and losers can be tough, but I’m calling 19 (59%) of the term’s authored opinions as wins for the Government. Those 19 cases are: Cimball Sharpton, Danylo, Davis, Finch, Frey, Gutierrez, Hines, Hornback, Jones, Kearns, Leahr, Lee, Mead, Moss, Passut, Payne, Talkington, Treat, and Winckelmann.

Broken down by service, among authored opinions the Government won in:

  • 7 out of 15 Air Force cases (47%)
  • 9 out of 14 Army cases (64%)
  • The single Coast Guard case (100%)
  • Both Marine Corps cases (100%)

Each of the judges sided with the Government (see note below) as follows:

  • Chief Judge Baker: 23 out of 32 (72%)
  • Judge Ryan: 19 out of 32 (59%)
  • Judge Stucky: 17 out of 32 (53%)
  • Judge Erdmann 17 out of 32 (53%)
  • Judge Ohlson 12 out of 23 (52%)
  • Senior Judge Effron: 4 out of 8 (50%)
  • Senior Judge Cox: 0 out of 1 (0%)

Note: These calculations include Judges Ryan and Stucky as siding with the Defense in Treat (CAAFlog case page), and Chief Judge Baker and Senior Judge Effron as siding with the Defense in Moss (CAAFlog case page). That said, Treat could be read as a unanimous win for the Government (as all five judges would have affirmed the conviction), and Moss could be read as a loss for both sides (as even the dissenters didn’t indicate how they would have decided the granted issues).

Compared to last year’s overview, the Government won a greater percentage of cases decided in authored opinions this year (59%) than last year (50%) (last year’s number excludes the 3 ex writ cases). If keeping a case away from CAAF is considered a win for the Government (a fair characterization I think), then the Navy had a perfect record and retained its position as the service that won the most (last year the Navy won 4 out of 5 cases – 80%). In contrast, the Air Force went from the second greatest percentage of wins last year (5 out of 8 – 62.5%) to the service that won the least this year (7 out of 15 – 47%).

This week at SCOTUS: A pro se cert petition was filed in Swiger v. United States, No. 14-6021. CAAF denied review on April 30, 2014, making the petition jurisdictionless. Additionally, last Friday was the extended deadline to file a cert petition in McMurrin v. United States, No. 13A1242.

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

This week at CAAF: The next scheduled oral argument at CAAF is on September 9, 2014.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on September 16, 2104.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on September 10, 2014.

On 28 August, the Army Court of Criminal Appeals decided an Article 62, adverse to the government in United States v. Muwwakkil.

After the recorded Article 32 in this case was completed, as usual a summary of the complaining witness’s testimony was prepared from the audio recording.  The audio recording was then deleted.  (Practice credit here.  There was a back-up recording being made at the same time. And in fact one of the recorders did malfunction during the hearing.)  They could only recover 52 minutes of the CW’s 2.25 hours of testimony; and it only had the direct testimony, not the all important cross and follow-up.  There was no verbatim transcript made.  (The military judge declined to order production of the defense paralegal’s notes made during the testimony.)

At trial the complaining witness was allowed to testify on direct.  After direct the defense asked the judge to strike the testimony, citing to the Jenck’s Act and R.C.M. 914.

After taking evidence and testimony the military judge agreed with the defense that there was a violation, and to striking all of the testimony – thus this government appeal.  The military judge (note to Air Force, and others) did not find the summary of testimony “substantially verbatim.”  The IO apparently concluded that the CW’s testimony was, “inconsistent with previous statements.”

On appeal, the government agreed that there was a Jenck’s Act violation, but disagreed with the remedy in a situation where, according to the government:

a. There was no showing of gross negligence.

b. There was no prejudice to the defense.

c. And the remedy was “unduly extreme.”

ACCA rehearses the oral findings of fact and conclusions of law made by the military judge.

ACCA and the parties agreed that the issue involves the abuse of discretion standard similar to other suppression issues – thus ACCA’s review was “necessarily deferential” to the military judge’s findings.

ACCA analysis sets out the following: if the loss is due to bad faith or gross negligence – striking of testimony is “mandated.” But otherwise it is discretionary according to a “totality of the circumstances” balanced against any available remedy.  The court also addressed the good faith exception found in other suppression issues.

ACCA finds the military judge’s findings and conclusions of government negligence are “amply supported” and not clearly erroneous.

Ultimately ACCA finds that the government is – my words – “simply” quibbling with the military judge, which is not the standard of review.

My practice note.  I take it the defense was not provided a copy of the audio recording.  I have always made it a practice to ask for a copy of the 32 audio immediately, and generally get that from Navy and Marine 32’s (likely because we usually do the hearings in the court-room, and so it’s easy to make a FTR Gold “readable” copy.  Had the defense been provided a copy of the audio before it was destroyed, there would never be an issue here.  A note for future IO’s and GR’s.  It’s always a good idea to dump a copy of the audio to a CD and give it to the defense before they leave the building.  I don’t believe this is the first time the 32 audio has been lost, it might happen again.

I would expect serious consideration on the part of the government to put this case before CAAF – up periscope.

On a side note, knowing this judge and where the trial was being held, there might be a back-story here if anyone knows it?

The Silver CAAF Tongue Award, while lacking physical manifestation, is a life-changing honor bestowed upon the counsel who argued the most cases at CAAF during the term.

The 2013 Term winner is Major Daniel Breen of the Air Force Appellate Government division, who argued four cases (Elespuru, Janssen, McPherson, and Wilson).

Notably, there is a whopping six-way tie for second place, with each counsel having argued three cases. The counsel (in alphabetical order) are: Captain Brian Andes (Army Appellate Defense), Mr. William Cassara (civilian), Captain Samuel Gabremariam (Army Appellate Government), Captain Daniel Karna (Army Appellate Government), Captain Matthew J. Neil (Air Force Appellate Government), and Captain Thomas Smith (Air Force Appellate Defense).

Past winners can be seen here.

USACIL is the United States Army Criminal Investigation Laboratory. It is part of United States Army Criminal Investigation Command (USACIDC) that reports directly to the Provost Marshal General, Headquarters, Department of the Army. See General Order 22, Oct. 16, 2006

United States v. Katso, __ M.J. __, No. 38005 (A.F. Ct. Crim. App. Apr. 11, 2014), cert. for rev. filed, __ M.J. __ (C.A.A.F. Jun. 9, 2014) (CAAFlog case page), is a significant Confrontation Clause decision by the Air Force Court of Criminal Appeals. In Katso a three-judge panel of the court led by Chief Judge Roan found that a surrogate DNA expert who testified for the Prosecution improperly repeated testimonial hearsay, depriving the appellee of his constitutional right to confront the examiner who actually conducted the DNA analysis (but was unexpectedly unavailable for trial due to a family emergency). The CCA then split 2-1 to find that error prejudicial, reversing the convictions for aggravated sexual assault, burglary, and unlawful entry, for which the appellee was sentenced to confinement for ten years, total forfeitures, and a dishonorable discharge. I analyzed the CCA’s opinion in this post.

The Judge Advocate General of the Air Force certified Katso to CAAF with the following issue:

Whether the Air Force Court Of Criminal Appeals erred when it found Appellee’s Sixth Amendment right to confrontation was violated when the military judge permitted, over Defense objection, the testimony of the Government’s DNA expert, and that the error was not harmless.

The DNA analysis was conducted by USACIL, and CAAF’s daily journal for yesterday reveals that the organization wants to be heard in the case:


No. 14-5008/AF. United States, Appellant v. Joshua KATSO, Appellee. CCA 38005. On consideration of the motions filed by the Defense Forensic Center, United States Army Criminal Investigation Laboratory, to file an amicus curiae brief in support of Appellant and to extend time to file a proposed amicus curiae brief in support of Appellant, it is ordered that said motions are hereby granted.  The brief of amicus curiae will be filed on or before September 10, 2014.

I think it very interesting that CAAF granted a motion to file an amicus brief from an Army command separate from the Army’s Appellate Government Division.

The Wright court-martial drags on as Judge Kastenberg threatens to dismiss the case if he doesn’t see emails from the AF TJAG and SecAirForce. Stars and Stripes report here.  The case against Airman 1st Class Brandon T. Wright went to an Art. 32 and resulted in a recommendation of dismissal.  The CA was, unfortunately, Lt. Gen. Craig Franklin.  After he chose not to refer the case, senior AF officials became involved.  This resulted in a new Art. 32 hearing (now at JB Andrews) and a new CA, Maj. Gen. Sharon K. G. Dunbar, deciding to refer the case.  Defense counsel want emails between senior officials to determine if there was UCI.  Judge Kastenberg has agreed, but the Air Force is refusing to produce them, even for an in camera review by the judge.  Prior coverage here.

Major General Michael Harrison, former Commander of USA Japan, has been retired at one lower paygrade as a result of his mishandling of a sexual assault case, Stars and Stripes report here.  The mishandling arose from a DoD civilian Japanese employee’s report of misconduct by an Army Colonel that was a longtime colleague of the General.  According to S&S:

Harrison referred the case to criminal investigators only after a reporter from Stars and Stripes spoke to the victim and inquired with U.S. Army Japan about the allegations. Previously, the general had ordered only an internal investigation of the allegations, in violation of regulations.

More than two months elapsed between the woman’s allegation of sexual assault and her first contact with Army Criminal Investigation Command, the IG reported.

Additional coverage from Stars and Stripes here and here.

An AP report, here, on the Sgt. Hasan Akbar hearing set for Nov. 18 at CAAF.  CAAF page here.  Prior posts here and here (ACCA Akbar op. from 2012).