In this post from February I discussed United States v. Seton, Misc. Dkt. No. 2013-27 (A.F.Ct.Crim.App. Feb. 24. 2014) (link to order), where the military judge dismissed the charge with prejudice as a remedy for the Government’s failure to preserve the video recording from a military dormitory’s surveillance system. The AFCCA affirmed the judge, finding that the video is of central importance in this case where Appellee is charged with one specification of sexual assault in violation of Article 120 (2012), “alleging the appellee caused bodily harm to Airman First Class (A1C) BB through nonconsensual vaginal intercourse.” Order at 1. The CCA concluded:

The military judge reasonably determined A1C BB’s credibility was a central issue in the case and the video may have supplied a basis to impeach A1C BB’s earlier statements about the incident. In short, only two people know for certain what happened in the appellee’s dormitory room; no other direct evidence is available concerning what transpired in that room. Video that apparently would have directly impeached the credibility of one of those two people is reasonably categorized as “of such central importance to an issue that is essential to a fair trial.” R.C.M. 703(f)(2).

Order at 6. Additionally, the CCA determined that testimony is no substitute for the video. Quoting the military judge’s ruling, the CCA noted that, “The old adage, ‘A picture is worth a thousand words,’ comes to mind at this point.” Order at 7.

The JAG had less than a thousand words in response:

No. 14-6008/AF. U.S., Appellant v. Steven E. SETON, Appellee. CCA 2013-27. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY DISMISSING WITH PREJUDICE THE CHARGE AND SPECIFICATION BASED ON ALLEGED GOVERNMENTAL VIOLATIONS OF ARTICLE 46, UCMJ, R.C.M. 701, AND R.C.M. 703.

CAAF will hear oral argument in the Army case of United States v. Jones, No. 14-0071/AR (CAAFlog case page), on Wednesday, April 9, 2014, at the Florida International University College of Law, Miami, Florida, beginning at 12:30 p.m. The court will review a single issue:

Whether the military judge abused his discretion when he denied the defense’s motion to suppress appellant’s statement to the military police.

Regular readers might recognize the facts of this case, as Appellant was convicted of burglary and conspiracy to commit burglary for his participation in the 2011 robbery of over $380,000 from an Iraqi businessman. One of Appellant’s co-conspirators was Specialist Carrasquillo, whose invocation of his right to remain silent was considered by the Army Court in a published opinion issued last November. United States v. Carrasquillo, 72 M.J. 850 (A.Ct.Crim.App. 2013) (link to slip op.). I discussed that opinion in a December post titled: The right to remain silent when the evidence of guilt is overwhelming.

Before the robbery, one of Appellant’s co-conspirators (Carrasquillo, actually, though Appellant was there too) attempted to recruit Specialist Ellis into the conspiracy. Specialist Ellis was an augmentee military police officer who wore a military policeman’s uniform but had little formal training. Ellis thought Carrasquillo was joking, but when Ellis later heard about the robbery (and was assigned to investigate it), he suspected Appellant and questioned him without first advising him of his right to remain silent under Article 31, UCMJ.

The questioning proceeded along these lines:

Question [Ellis]: Jones, don’t fucking lie to me, what the fuck happened and why the fuck did you do it.
Answer [Appellant]: I don’t know what your talking about we didn’t do anything.
Question: Don’t fucking lie to me tell me the truth?
Answer: Alright we did it!
Question: You did what exactly?
Answer: We went over there and robbed the guy with all the money.

App. Br. at 4-5. At trial, the military judge rejected a Defense motion to suppress this exchange due to the lack of a rights advisory, finding that “SPC Ellis was acting in an unofficial capacity and was not acting as a part of a law enforcement disciplinary investigation, and that [Appellant] did not perceive the questioning as more than a casual conversation between peers.” App. Br. at 6. The judge also concluded that Ellis did not suspect Appellant of the robbery at the time of the questioning, but was merely acting on “a hunch based from [sic] the previously solicitation.” App. Br. at 7. The statements to Ellis were admitted into evidence at trial, Appellant was convicted of the burglary and conspiracy, and Appellant was sentenced to confinement for two years and a bad-conduct discharge. The Army CCA summarily affirmed.

In his brief to CAAF, Appellant’s asserts that the military judge made three errors in denying the Defense motion to suppress:

(1) Concluding that Appellant was not a suspect within the meaning of Article 31 when he was questioned by Ellis;
(2) Concluding that the questioning was just a casual conversation and not an interrogation; and
(3) Concluding that Ellis was not acting in an official capacity at the time of the questioning.

Appellant must prevail in the analysis of each of these assertions of error if he stands a chance of relief, because a military policeman need not give a rights advisement when the accused isn’t yet a suspect (see United States v. Miller, 48 MJ 49, 54 (C.A.A.F. 1998)), and because Article 31(b) does not apply where the questioner is not acting in an official capacity or the person questioned does not perceive the inquiry as more than a casual conversation (see United States v. Duga, 10 MJ 206, 210 (C.M.A. 1981)).

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Lightning strikes twice at Ft.  Hood as a gunmen has alleged shot and killed three people and himself on the base. Report here.

Back in November, Sam wrote a post about the Air Force CCA’s published decision in United States v. Piolunek, __ M.J. __, No. 38099 (A.F.Ct.Crim.App. 2013) (link to slip op.). The title of the post was: AFCCA Invites CAAF to Clarify its Position in Barberi.

In United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012) (link to slip op.) (CAAFlog case page), CAAF determined that the Due Process Clause requires that the conviction be set aside when it is the product of a general verdict of guilt that is based in part on conduct that is constitutionally protected.

In Piolunek, the AFCCA affirmed convictions for receipt and possession of child pornography, even though it found that “3 of the 22 images that served as the basis for the appellant’s convictions do not meet the legal requirements to be visual depictions of a minor engaging in sexually explicit conduct and are, therefore, constitutionally protected.” Piolunek, __ M.J. __, slip op. at 7.

But yesterday CAAF said:

No. 14-0283/AF. U.S. v. Justin M. PIOLUNEK. CCA 38099. Review granted on the following issue:

Whether appellant’s convictions for possession and receipt of child pornography on divers occasions must be set aside because several images offered in support of the specifications are not child pornography and are constitutionally protected, a general verdict was entered, and it is impossible to determine whether said images contributed to the verdict.

Briefs will be filed under Rule 25.

In the old cases category, according to this Marine Corps Times report, Marine judge advocate Lieutenant Colonel Jasper, formerly the western regional trial counsel at Camp Pendleton, CA:

was cleared of misconduct at a Board of Inquiry following accusations that he slapped the rear end of a civilian female subordinate at a social event following legal training in Newport, R.I., last year. The panel also found no basis for allegations of substandard performance, which stemmed from accusations that Jasper treated certain junior officers in a demeaning way.

The report doesn’t say exactly, but I’ve heard that the board found no basis for separation. However, the report does include these noble words from LtCol Jasper’s defense counsel:

“Lt. Col. Jasper and his family, this has been a big stress on them. As much as they’re very, very happy that the process ended up working the way it did, it was difficult to go through that process,” Shelburne said. Despite that stress, Shelburne said, Jasper wanted to emphasize a desire that his case not create a rift within his field.

“No one wants this to reflect poorly on the judge advocate community or the Marine Corps for that matter,” he said.

Also in the old cases category, according to this report from the Anchorage Daily News, Petty Officer 3rd Class William Bisel was acquitted of all charges last week. Readers will remember the Bisel case from posts such as “The Coast Guard CCA declines to create its own jurisdiction (and then the Government appeals),” and “CAAF declines to create jurisdiction for the Coast Guard CCA.”

But in the new cases category, a commentor previously noted this local media story about allegations against Air Force Army Major Erik Burris (the Chief of Justice for the 82nd Airborne Division) that were made by his estranged wife. This case joins the allegations against another judge advocate: Army Lt. Col. Joseph Morse (who trains military prosecutors who handle sexual and physical abuse cases), whose case is discussed in this Washington Times report.

In other news, the Washington Post has this story on the SVC program, with an emphasis on the Sinclair case.

And finally, the Washington Times has a story titled: Political hunt for sex abusers puts military justice in peril, lawyers say. It begins:

The push from the commander in chief, generals and politicians to punish sexual offenders has become so relentless that it endangers the fairness of the military justice system, defense lawyers say.

They worry that a cacophony of public statements vouching for accusers and demanding justice can sway military judges and jurors who are trained to take lawful orders.

A rather unique feature of a court-martial is that both the judge and the members can ask questions of the witnesses. Typically, when a member asks a question, the question is first written down and counsel for both sides have an opportunity to object in advance. Not so when the judge asks questions. The judge just asks away.

This creates the dangerous possibility that a party will object to a question from the judge after it is asked (and maybe even after it is answered). And this possibility is dangerous indeed, as “the influence of the trial judge on the jury is necessarily and properly of great weight and jurors are ever watchful of the words that fall from him. Particularly in a criminal trial, the judge’s last word is apt to be the decisive word.” United States v. McIlwain, 66 M.J. 312, 314 (C.A.A.F. 2008) (marks and citations omitted).

In the case of United States v. Loiacono, No. 201200451 (N-M.Ct.Crim.App. Mar. 25, 2014) (link to unpub. op.), the Navy-Marine Corps Court of Criminal Appeals considered the propriety of questions asked by the military judge during the trial, along with numerous other issues. The appellant was convicted of making a false official statement and engaging in indecent liberties with a child in violation of Articles 107 and 120. But he was acquitted of an additional charge of communicating indecent language.

For the indecent language charge, the appellant was alleged to have made anonymous phone calls to a hotel guest, “AN”:

On 18 August 2011, one of the hotel guests, AN, a German national, received anonymous phone calls soliciting sexual acts. . . . When AN registered his complaint, hotel management investigated and determined that the phone calls had come from within the hotel. . . .

AN checked out of the hotel on 19 August, but returned on 23 August and checked into Room 521. At 23:57 on 24 August 2011, AN received another anonymous phone call and recognized the voice as the same person who had called him on 18 August 2011. After he hung up, AN called AS, a traveling companion who was staying in Room 229. AN had previously told AS about the anonymous phone calls and both agreed that if the phone calls started again, AS would assist AN in discovering the identity of the caller in an effort to make the calls stop.

Slip op. at 3. AN received another such call, arranged to meet the caller in a room, went to the room with AS, turned on the lights, and discovered Appellant in bed. “The appellant then asked ‘what are you doing in my room.’ Both AN and AS left the room.” Slip op. at 3.

But multiple guests complained to the hotel management about anonymous phone calls soliciting sexual acts, and so the hotel began to track room-to-room calls. The Prosecution attempted to admit a log of these calls into evidence:

When AN first complained to hotel management about receiving anonymous and indecent phone calls, he was not the only one who had complained. Prior to trial, the Government provided notice to the defense pursuant to MIL. R. EVID 404(b) that it would seek to admit evidence of other hotel guests who had received anonymous and indecent phone calls. The appellant filed a motion to exclude this evidence primarily citing MIL. R. EVID. 403. The military judge granted the motion and ruled that the room-to-room telephone logs be redacted to show only telephone logs associated with calls to specified rooms.

Slip op. at 27 (citations to record omitted). So, with the other calls excluded, AN testified for the Prosecution at trial. After direct examination, cross examination, and re-direct examination, the military judge questioned AN:

MJ: You said that you and [AS] had talked about the possibility of this person calling you again before you went back to the Marriott, is that correct?

AN: No, sir, we – I arrived at the 27th [sic].

MJ: Okay.

AN: And there I met [AS], and he was the co-pilot of the next day. And we talked about the phone calls and–

CDC: Your Honor, I’m just going to object for hearsay purposes. I know, Your Honor is asking the questions, so, respectfully I objected under hearsay.

MJ: Okay. I’ll actually sustain your objection against me.

MJ: What made you think you needed a plan, in case you got more phone calls? Why did you think you would get more phone calls of a harassing nature?

AN: Because I haven’t been the only one.

CDC: Your Honor, I’m going to ask for a 39(a) [session], Your Honor.

Slip op. at 30. There are a number of obvious issues with this line of questioning. The judge began by asking the witness about an out-of-court conversation with a third party, inviting the hearsay response. Then, after he sustained an objection to his own question, the judge continued to probe out-of-court acts with a compound and argumentative question that not only invited another hearsay response, but also invited reference to the other calls (that were themselves inadmissible).

Because of this exchange, the appellant asserted on appeal that ”the military judge abandoned his impartial role when he asked AN a question and AN’s response touched on an evidentiary matter that the military judge had previously ruled inadmissible.” Slip op. at 29.

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That’s the theme of my opinion piece published in today’s edition of The Baltimore Sun.

That’s the title of a forthcoming article by Air Force judge advocate Major Matthew Burris, in the Buffalo Journal of Gender, Law, and Social Policy. You can access the article on SSRN at http://ssrn.com/abstract=2414494

Here’s a taste (from the article’s introduction):

Yet stories that feel archetypally right—even those supported by gripping anecdotes—might also grossly misrepresent reality. Such is the case with the military’s so-called “sexual assault crisis”: the intuitively compelling narrative advanced by the media, some members of Congress, victim advocacy groups, and others is not empirically supportable. While there is no logical proof for what does or does not constitute a crisis, at the very least, a crisis moniker suggests a widespread problem—and one that is growing and generally out of control. The best available data, however, suggest this is simply not the case.

As discussed in detail below, the data instead suggest that: (1) an estimated 98% of service members , or 1.324 million, experienced no form of unwanted sexual contact during fiscal year 2012;16 (2) between fiscal years 2010 and 2012, only two of the four Armed Services showed a statistically significant increase in the number of estimated victims of unwanted sexual contact and overall numbers are down from fiscal year 2006; (3) the prevalence of sexual assault in the military is comparable to demographically similar civilian populations; (4) senior military commanders are more aggressive in exercising their prosecutorial discretion in sexual assault cases than are licensed attorneys; (5) overturning the results of courts-martial are exceptionally rare events, particularly in the case of serious offenses like sexual assault; and (6) removing senior commanders’ authority to make prosecutorial decisions will not improve extant conditions. If this is what the data suggest, then the crisis narrative was arguably borne of something other than data. To be sure, it appears to have been borne largely of a disparate group of concerned and well-intentioned individuals thinking fast about a problem that cries out for thinking slow.

One of the most basic skills for a trial lawyer is giving verbal descriptions of in-court actions as they occur, and having a witness mark exhibits when pointing at them, because the microphones that are recording the proceedings for the record can’t see what’s happening in the room.

But over the past few months we’ve seen a rash of appellate opinions that address trial-stage failures at the most basic level. Adding to the list is a recent opinion of the Army CCA in United States v. Wada, No 20120457 (A.Ct.Crim.App. Feb. 28, 2014) (link to slip op.).

Private Wada was tried by a general court-martial composed of members with enlisted representation. He pleaded guilty to numerous offenses, including willfully disobeying a superior commissioned officer, willfully disobeying a non-commissioned officer, resisting apprehension, assault consummated by a battery, and wrongfully communicating a threat. However, he pleaded not guilty to a charge of aggravated assault with a means likely to cause death or grievous bodily harm, and the Government elected to proceed to trial on that charge.

The charge alleged that the appellant dragged and struck the victim with an SUV.

The government case regarding this charge consisted of one witness, SGT JW, who testified using Prosecution Exhibit 1, an aerial photograph of the scene. During his testimony, SGT JW repeatedly referred to Prosecution Exhibit 1, but no markings were placed on the exhibit to memorialize his testimony nor does the exhibit contain a legend identifying the places described.

Slip op. at 2. The Defense called two witnesses who contradicted SGT JW’s testimony. One was a Specialist who was standing nearby and watched the incident. “From his vantage point, it did not look like the vehicle struck the [victim].” Slip op. at 3. The other witness was the victim. She testified that “she was not struck by the SUV; she was not injured in any way by the SUV; she was wearing slippers at the time; and her feet never dragged across the ground.” Slip op. at 3. But on cross-examination the Government impeached the victim’s credibility with the fact that she was the appellant’s dependent and he provided her with financial support. The panel convicted the appellant of the offense.

The CCA reverses for factual insufficiency:

We have weighed the evidence, making allowances for not personally observing the witnesses. Because Prosecution Exhibit 1 contains no legends or markings, we cannot identify most of the areas described by SGT JW or SPC KC, and that is important to our determination regarding whether we can find beyond a reasonable doubt that the SUV actually struck TW. Sergeant JW’s testimony, standing alone, contradicted by the testimony of TW and SPC KC in the absence of any evidence of injury to TW, is not sufficient to prove to us beyond a reasonable doubt that TW was struck by the SUV. Therefore, after a thorough review of the record, we find the evidence factually insufficient to support appellant’s conviction of aggravated assault.

Slip op. at 4 (emphasis added). Now this wasn’t the strongest case for the Prosecution. After all, its single eyewitness was contradicted by a Defense eyewitness and by the victim. But the CCA’s decision explicitly acknowledges the impossibility of recreating the critical testimony of SGT JW, because the exhibit that SGT JW used while he testified was not annotated.

Coincidentally, the events at issue occurred in December 2011. That’s the same month that I criticized the way the military conducts legal training in a post titled: Where are the teachers?

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court.

This week at CAAF: The next scheduled oral argument at CAAF is on April 9, 2014. This will be a project outreach oral argument held at Florida International University College of Law in Miami, Florida.

This week at the ACCA: The Army CCA will hear oral argument in United States v. Hurts, No. 20120301, on Wednesday, April 2, 2014, at 10 a.m. The issues are:

I. Whether the evidence is factually sufficient to sustain a conviction of assault with a means likely to produce death or grievous bodily harm upon PFC AJ, PFC CJ, SPC JK, PFR RV, and PFC PM.
II. Whether the military judge abused his discretion in concluding that CPT [K] was an adequate substitute for Dr. [B].

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 April 10, 2014.

In the wake of the debacle of the Sinclair court-martial, where the defense team used political concerns as a basis to successfully argue that the prosecution of the General was unfair, comes news that a half-century ago President Nixon may have used his office to sabotage a different high-profile court-martial prosecution. From this CBS News report:

The documents, mostly hand-written notes from Nixon’s meetings with his chief of staff H.R. “Bob” Haldeman, lead some historians to conclude that President Richard Nixon was behind the attempt to sabotage the My Lai trials and cover up what was becoming a public-relations disaster for his administration.

There’s an interesting murder trial wrapping up at Fort Stewart in Georgia. From this local media report:

Closing arguments are set to begin at 8 A.M. [Thursday] in a Fort Stewart Court-Martial. Private Isaac Aguigui is charged with murder in the death of his wife, Sgt. Deirdre Aguigui and their unborn child back in July of 2011. Officials say his plan was to fund his anti-government militia group with the insurance money from her death. This is a court-martial by a judge, not a jury panel, so we’re not sure how quickly a verdict could come.

The Coast Guard Academy will conduct an Article 32 investigation in a sexual assault case involving two cadets. There are few details of the case beyond those in this local media report.

And in further Coast Guard news, this local media report discusses the resumption of trial proceedings in United States v. Bisel:

“The court-martial was originally scheduled to begin on July 30, 2013 but was postponed due to procedural issues,” officials wrote. “Petty Officer Bisel is charged with two violations of Article 120 of the Uniform Code of Military Justice, which involve sexual assault.”

I think calling the delay in this case the product of procedural issues is taking liberties with the facts. As I discussed in this post back in February, the issue in Bisel was that the trial counsel tried, but failed, to allege the offense of forcible rape, instead charging only the lesser offense of aggravated sexual contact. Rather than prefer an additional charge, the Government appealed the military judge’s ruling. The Coast Guard Court of Criminal Appeals found that it lacked jurisdiction to consider the appeal because the military judge didn’t actually dismiss anything (the requirement for such an appeal). So, the Government asked the court to order the judge to dismiss the charge, thereby creating jurisdiction for its appeal.

The Coast Guard Court, and then CAAF, declined.

CAAF decided the Army case of United States v. Kearns, No. 13-0565/AR, __ M.J. __ (CAAFlog case page) (link to slip op.), on Friday, March 21, 2014, finding that Appellant’s conviction for transportation of a minor for illegal sexual activity, in violation of 18 U.S.C. § 2423(a), is legally sufficient, and affirming both the findings and the published decision of the Army Court of Criminal Appeals.

Judge Ohlson writes for a unanimous court (and it’s his first opinion of the court).

Appellant was convicted in absentia, contrary to pleas of not guilty entered on his behalf, by a general court-martial composed of officer members, of making a false official statement, aggravated sexual assault of a child, wrongful transportation of a minor through interstate commerce, and a general disorder, in violation of Articles 107, 120, and 134, UCMJ. He was sentenced to confinement for four years, reduction to E-1, total forfeitures, and a bad-conduct discharge.

Judge Ohlson’s opinion provide a succinct summary of the facts:

During the relevant time period, Appellant was a twenty-two year-old soldier stationed at Fort Bliss, Texas. In both November and December of 2009, while Appellant was home on leave in Pennsylvania, he had sexual intercourse with K.O. K.O. was fifteen years old at the time and Appellant knew she was a minor. When Appellant returned to Fort Bliss, Appellant and K.O. stayed in contact via text messages and phone calls.

At some point in their relationship, K.O. falsely told Appellant that she had been sexually assaulted by a family member. Thereafter, in January 2010, Appellant paid a female friend to transport K.O. from Pennsylvania to Texas. However, before the friend and K.O. (along with another minor female) reached the Fort Bliss area, they were stopped by Texas law enforcement for a traffic violation. The police determined that K.O. and the other young female were minors and possible runaways.

Slip op. at 2-3. The defense asserted at trial that Appellant “facilitat[ed] K.O.’s travel across state lines [in order] to remove her from a sexually abusive environment,” and not for the purpose of illegal sex. Slip op. at 4. On review, the Army CCA considered various formulations from the federal circuits of the intent required to violate  § 2423(a). In a published opinion, the court concluded that “as long as the illegal sexual activity is a purpose of the transport and not merely incidental to the travel, the requisite intent is met.” United States v. Kearns, 72 M.J. 586, 587 (A.Ct.Crim.App. 2013) (link to slip op.). The CCA found that Appellant had such intent based upon Appellant’s prior sexual activity with KO, the fact that KO had romantic feelings for Appellant and sent him a sexually suggestive picture, and Appellant’s initial denials of his role in KO’s transportation to Texas and their prior sexual contact.

CAAF granted review to determine:

Whether the evidence was legally sufficient to prove that Appellant had the intent to engage in criminal sexual conduct with KO, a minor, when he facilitated KO’s travel in interstate commerce and was found guilty in Specification 1 of Charge III of violating 18 U.S.C. § 2423(a).

Judge Ohlson begins his discussion by explaining that § 2423(a) states, in pertinent part:

A person who knowingly transports an individual who has not attained the age of 18 years in interstate or foreign commerce . . . with intent that the individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, shall be fined under this title and imprisoned not less than 10 years or for life.

Slip op. at 8.

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PACER where are you?

Came across this today on a case pending before NMCCA.

Yesterday, March 25, 2014, the sexual rights organization, National Coalition for Sexual Freedom (NCSF) filed a “freind (sic) of the court brief” (amicus curiae) in the case of a U.S. Marine. Lance Corporal Gregory Miles was convicted of adultery, attempted sodomy and indecent conduct in a Navy-Marine Corps Court. Miles was confined for 12 months, suffered a pay reduction and a bad-conduct discharge from the Marine Corp.

At Examiner.com

CAAF decided the Air Force case of United States v. Danylo, No. 13-0570/AF, 73 M.J. 177 (CAAFlog case page) (link to slip op.), on Monday, March 24, 2014, narrowly deciding that the delays in the case do not rise to the level of a violation of Appellant’s Sixth Amendment right to a speedy trial, and that the military judge did not err is his speedy trial analysis, affirming Appellant’s conviction and the decision of the Air Force CCA.

Judge Stucky writes for the court, joined by Judges Ryan and Ohlson. Chief Judge Baker dissents, joined by Judge Erdmann.

Appellant was convicted by a general court-martial composed of a military judge alone, pursuant to conditional pleas of guilty entered in accordance with a pretrial agreement, of use and distribution of marijuana and cocaine, introduction of marijuana, and assault consummated by a battery, in violation of Articles 112a and 128. He was sentenced to a bad-conduct discharge and confinement for 10 months. The pretrial agreement had no effect on the adjudged sentence because it only capped the confinement at time served, which was 350 days.

But during that 350 days of pretrial confinement Appellant made numerous speedy trial demands, and he even won dismissal of the charges on speedy trial grounds. However, the Government appealed, and 170 days passed (with Appellant still confined) before the Air Force CCA issued an opinion reversing the trial judge’s decision and reinstating the charges. Appellant again moved for dismissal at the trial stage, but the judge denied the motion, focusing on just the delay after the CCA’s decision on the Government’s appeal (reasoning that the CCA had resolved all prior delay in its decision).

On direct appeal, the AFCCA again reviewed the delay prior to the judge’s dismissal, and again found no violation of Appellant’s speedy trial right. CAAF then granted review of two issues:

I. Whether the military judge erred when he only considered the period of time of appellant’s Article 62, UCMJ, appeal for the purpose of his speedy trial motion.
II. Whether the appellant was denied his Sixth Amendment right to a speedy trial when his court-martial occurred 350 days after he was placed in pretrial confinement.

Judge Stucky begins his majority opinion by noting the limited scope of CAAF’s review in this case, eliminating the possibility that this case might resurrect the dead Article 10 (our #10 story of 2013). CAAF does not consider the speedy trial provisions of either Article 10 or Rule for Courts-Martial 707, as “the only assigned issue in his petition, and the issue this Court granted, was the Sixth Amendment issue.” Slip op. at 6. That issue is analyzed with the familiar four-factor test from Barker v. Wingo:

(1) the length of the delay; (2) the reasons for the delay; (3) whether the appellant made a demand for a speedy trial; and (4) prejudice to the appellant.

Slip op. at 6 (quoting United States v. Mizgala, 61 M.J. 122, 129 (C.A.A.F. 2005) (citing Barker v. Wingo, 407 U.S. 514, 530 (1972))).

The majority easily resolves both the first and third factors, as the Government conceded that both favored Appellant. But the bulk of the court’s analysis – and Chief Judge Baker’s dissent – is focused on the second and fourth factors.

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After last week’s dramatic conclusions to the Sinclair and Tate cases, this story from Vanity Fair reminds us of the so-called “Duke Rape Case,” that arose from a stripper’s false allegation of rape against three members of the Duke lacrosse team. The Vanity Fair story talks about one team member who wasn’t charged with rape, but who is still fighting to get his life back on track.

And from the article:

For what was subsequently adjudged to be his many shortcomings in the handling of the Duke lacrosse case, Durham County District Attorney Mike Nifong was fired from office, was disbarred and was sentenced to one day in jail—the only person who spent any time in jail in connection with the case.