In United States v. Ellis, No. 201500163 (N.M. Ct. Crim. App. Aug. 30, 2016) (link to slip op.), a three-judge panel of the NMCCA applies CAAF’s recent decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page), to reverse the appellant’s convictions of sexual assault upon two different women whose allegations were separated in time by nine months but shared numerous similarities.

Finding the same errors as CAAF found in Hills (an abuse of discretion in allowing the prosecution to use charged offenses for propensity purposes, and an instruction to the members about the evidence that undermines the presumption of innocence), the NMCCA concludes:

Having found abuse of discretion and error, we must assess the prejudice to Chief Ellis and determine whether the instructional error was harmless beyond a reasonable doubt. While the Government presented a strong case against Chief Ellis, it suffered some of the same weaknesses that concerned the CAAF in Hills. There was no physical evidence. Other than Ms. LW and Chief TA, none of the eyewitnesses observed sexual contact or sexual acts. Evidence of the actus reus of all but one specification consisted solely of the accuser’s testimony. Trial defense counsel impeached Ms. LW’s allegation that Chief Ellis penetrated her vagina with his penis using her initial statements that he performed oral sex but only attempted vaginal intercourse. The members acquitted Chief Ellis of one specification of abusive sexual contact involving Chief TA, convicting him instead of the lesser included offense of assault consummated by battery and revealing their reasonable doubt about Chief TA’s claim that Chief Ellis touched her breast and buttocks in the bathroom. Finally, trial defense counsel challenged Chief TA on her possible bias, prejudice, or motive to misrepresent stemming from her role as Ms. LW’s victim advocate and her subsequent decision to report her 11-month-old encounter with Chief Ellis as a sexual assault.

The facts of this case prevent us from being certain, beyond a reasonable doubt, that error did not contribute to Chief Ellis’s convictions.

Slip op. at 6.

The CCA sets aside the findings and sentence, authorizing a rehearing.

Two recent developments in the ongoing case of Marine Major Mark Thompson (CAAFlog news page), which is currently scheduled for trial in January (according to this news report), are worthy of mention.

First, as reported here, Thompson’s attorneys assert that the recording of Thompson’s interview with the Washington Post, posted online this summer (discussed here) is incomplete:

The 45-minute audio recording of The Post’s interview with Thompson, which the newspaper published online in July, is part of the military’s case set to begin in January.

At a preliminary hearing at Marine Corps Base Quantico on Tuesday, Thompson’s attorneys asked a military judge to order The Post to turn over the original recording and contemporaneous notes from the reporter.

“Our contention is that there are portions of the interview missing,” Thompson attorney Kevin B. McDermott said in the courtroom in the basement of Lejeune Hall. “If the government intends to use my client’s statements against him, we believe we should have access to it.”

Second, as reported here, Thompson’s attorneys are asserting prosecutorial misconduct in connection with the immunized statement of another Marine, Major Pretus, who will be a witness against Thompson:

In a motions hearing Sept. 13 at Marine Corps Base Quantico, Virginia, defense attorney Navy Lt. Clay Bridges said the three attorneys for the prosecution engaged in misconduct by not allowing Pretus to confer with an attorney before signing the immunity offer, made by Vice Adm. Walter E. “Ted” Carter, superintendent of the Naval Academy.

At the time of the offer, Pretus made a lengthy statement in which he described his friendship with Thompson, the sexual encounter with a midshipman, and phone calls between the two on another night, in which he alleges Thompson revealed his intent to have sex with two drunken midshipmen then at his house.

“The actions of the trial team have resulted in a different testimony,” Bridges said in Wednesday’s motions hearing. “And we will never be able to get the testimony back.”

It’s not clear how Pretus’ testimony might have been different if he had been allowed to confer with an attorney, as he requested.

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court, where I’m tracking three cases:

• Sullivan v. United States, No. 15-0186 (pend. conf. on Sep. 26) (CAAFlog case page)
• Akbar v. United States, No. 15-1257 (pend. conf. on Sep. 26) (CAAFlog case page)
• Caldwell v. United States, No. 16-209 (pend. conf. on Sep. 26) (CAAFlog case page)

This week at CAAF: The next scheduled oral argument at CAAF is on October 11, 2016.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Tuesday, September 13, 2016, at noon. This oral argument will occur at Florida International University College of Law in Miami, Florida:

United States v. Davis, No. 20150100

Issue: Whether the military judge erred by excluding evidence under military rule of evidence 412 which denied the appellant the opportunity for effective cross-examination.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Turner, No. S32317, on Thursday, September 15, 2016 at 10 a.m. No additional case information is available on the CCA’s website.

This week at the CGCCA: The Coast Guard CCA’s oral argument schedule shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

In the Air Force case of United States v. LaBella, 75 M.J. 52 (C.A.A.F. Dec. 11, 2015) (CAAFlog case page), LaBella’s detailed military defense counsel failed to petition CAAF within the 60-day jurisdictional time limit for doing so. The Air Force CCA subsequently granted a motion to reconsider, ostensibly resetting the 60-day clock. CAAF, however, unanimously held that the CCA lacked jurisdiction to grant the motion to reconsider after the 60-day CAAF deadline expired. Accordingly, because the 60-day time limit had expired, CAAF lacked jurisdiction to review the case.

LaBella subsequently sought extraordinary relief from the Air Force CCA, asserting ineffective assistance of counsel (for his detailed military defense counsel’s failure to file a timely petition at CAAF). The CCA denied the petition on July 7, 2016, in a decision that I discussed here.

CAAF’s daily journal for yesterday, September 7, 2016, has the following entry:

No. 16-0728/AF. Sebastian P. LaBella, Appellant v. United States, and United States Air Force Court of Criminal Appeals, Appellees. CCA 37679. Notice is hereby given that a writ-appeal petition for review of the decision of the United States Air Force Court of Criminal Appeals on application for extraordinary relief in the nature of a writ of error coram nobis was filed under Rule 27(b) on this date.

The deadline to file a writ-appeal petition at CAAF is 20 days from the date of service of the CCA’s decision on the writ petition. C.A.A.F. R. 19(e) (2016).

September 7 is the 62nd day after July 7.

[First I know it wasn’t a debate, so don’t hit send on that hate mail you are drafting]

From the Republican Presidential candidate, per NPR (here):

The Pentagon has to set up a “court system within the military,” . . . One today “practically doesn’t exist … Right now, part of the problem is nobody gets prosecuted. You have reported and — the gentleman can tell you, you have the report of rape and nobody gets prosecuted. There are no consequences. … Look at the small number of results. I mean, that’s part of the problem.”

So what the heck has the Mil Jus system been doing for the last five years?  Because all I see them doing is dealing with the issue of sexual assault.

So this post squarely falls into the category of “Rants” because I just can’t take the fact that we have a Presidential candidate that has absolutely no accountability for rolling out a blatant falsehood. The Republican candidate is the political equivalent of Tommy Flanagan on this issue. It is not like the numbers aren’t available either.  See here and here and here . . . and that’s just 2015 numbers, you get the point.  So here are the numbers:

Of the 6,083 initial complaints filed last year, about 1,500 were “restricted,” meaning the victim was a service member who reported the assault but refused to participate in any criminal investigation and only sought healthcare and victims’ support services.

In 2015, military criminal investigators reviewed 4,584 “unrestricted” reports from victims who were willing to participate in a potential prosecution. . . .

After completing investigations, 2,783 cases were sent to military commanders.

. . . .
Commanders launched court-martial proceedings against the alleged perpetrator in 926 cases. Among those, 159 were closed because the alleged perpetrator resigned from the military, and 111 were closed because the case was dismissed in pretrial proceedings.
Of the 543 cases that ultimately went to court-martial, 130 resulted in not-guilty verdicts.
Of the 413 troops convicted at court-martial, 161 resulted in charges unrelated to sex assault.
In 254 cases, a service member as convicted of a sexual assault-related offense.

[edit:  So if the candidate is going to lob out this “nobody gets prosecuted” statement, what’s his solution?  That’s what campaigns are about.]  Let’s look at what the conservative Heritage Foundation and friend o’ CAAFlog, Cully Stimson, said about removing command authority as a way to achieve better success in sexual assault cases in the military:

The facts also do not support this argument. None of our allies has a caseload as large as the armed forces of the United States. Despite this caseload, our current U.S. system remains more effective than those of our allies. For example, the Army installation at Fort Hood alone has a higher conviction rate than Canada Defense Forces and is equal to the Israeli Defense Force in courts-martial for sexual assault offenses.  Most of America’s allies reported that removing the authority to prosecute from the chain of command has slowed prosecutions, and they saw no increase in the number of convictions under the new system.

Article here.  Is that what this candidate is proposing?  Please someone hold this candidate accountable when he just speaks untruths or at least force him to posit a solution to the problem.

The next meeting of the Judicial Proceedings Panel will occur on Friday, September 23, 2016, in Arlington, VA. A full announcement of the meeting is available here.

The agenda for this meeting is primarily presentations from former appellate judges in the military justice system (including former Chief Judge Baker of CAAF), and from the military appellate organizations (Government and defense), all providing “perspectives on victims’ appellate rights.”

Since the establishment of Article 6b, enacted in the wake of CAAF’s narrow decision in LRM v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013) (CAAFlog case page), we’ve had a few occasions to wonder about the scope of an alleged victim’s ability to intrude upon the automatic appellate review of a court-martial conviction. This term, for instance, CAAF determined that it lacks jurisdiction to entertain a writ-appeal under Article 6b, in EV v. United States & Martinez, 75 M.J. 331 (C.A.A.F. Jun. 21, 2016) (CAAFlog case page). CAAF also declined to intervene to prevent the disclosure of sealed materials (mental health records of alleged victims that were attached to the record of trial) to appellate defense counsel in a handful of Air Force cases (discussed here and here).

Alleged victims are not parties to a court-martial, they’re (at most) witnesses. While Article 6b(e) gives an alleged victim (or their representative) certain extra rights, and allows such a person to seek enforcement of those rights by a writ of mandamus from a court of criminal appeals, there is no clear basis to treat alleged victims differently from any other witness during appellate review of a court-martial. Perhaps, however, the JPP will find one.

I’m passing along the following CLE/PME announcement. I have a schedule conflict and won’t be able to attend, but I highly recommend this training:

Tuesday, September 13, 2016 at 8:00 AM – Thursday, September 15, 2016 at 12:30 PM at the Rosenthal Theater – Fort Myer-Henderson Hall, 1555 Southgate Road, Arlington, VA 22214

The event is uniquely tailored for appellate government, defense and victims’ legal counsel.  The training will consist of a series of lectures and collaborative discussions led by practitioners, jurists  and educators from across the services and the legal community. The focus is on critical appellate legal issues and timely training to enhance the practice of appellate advocacy in our community.

Trial-level and Appellate Counsel, Judges, Federal practitioners and Educators are welcomed and encouraged to attend.

REGISTER (paste link in browser):
https://www.eventbrite.com/e/4th-annual-joint-appellate-advocacytraining-tickets-27447314657?ref=enivtefor001&invite=MTA2NjM4OTkvdHJhY2V5LmhvbHRzaGlybGV5QG5hdnkubWlsLzA%3D&utm_source=eb_email&utm_medium=email&utm_campaign=inviteformalv2&utm_term=eventimage&ref=enivtefor001#tickets

Approximately 12 hours of CLE (incl. 1 hour ethics) anticipated.

Uniform: Service “C” or khakis, or service equivalent.  Civilians should wear appropriate business casual.

Contact: Mr. Brian Keller, (202) 685-7682, brian.k.keller@navy.mil, or Major Tracey Holtshirley, (202) 685-8384,tracey.holtshirley@navy.mil.

View Map <http://maps.google.com/maps?q=Fort+Myer-Henderson+Hall,+Arlington,+VA+22214+United+States&hl=en>

This week at SCOTUS: The petition in Caldwell was distributed for conference on September 26. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking three cases:

• Sullivan v. United States, No. 15-0186 (pend. conf. on Sep. 26) (CAAFlog case page)
• Akbar v. United States, No. 15-1257 (pend. conf. on Sep. 26) (CAAFlog case page)
• Caldwell v. United States, No. 16-209 (pend. conf. on Sep. 26) (CAAFlog case page)

This week at CAAF: The next scheduled oral argument at CAAF is on October 11, 2016.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, September 7, 2016, at 10 a.m.:

United States v. Bonilla, No. 20131084

Issues:
[I.] WHETHER APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY THE SIXTH AMENDMENT WHEN HIS CIVILIAN DEFENSE COUNSEL FAILED TO CALL A KEY DEFENSE WITNESS TO IMPEACH A.M.

[II.] WHETHER THE MILITARY JUDGE ERRED BY ALLOWING A DAMAGING HEARSAY STATEMENT INTO EVIDENCE AFTER HE ALREADY RULED THE SPECIFIC STATEMENT INADMISSIBLE.

[III.] WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN PROHIBITING THE DEFENSE FROM COMPLETING THEIR CLOSING ARGUMENT.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on September 15, 2016.

This week at the CGCCA: The Coast Guard CCA’s oral argument schedule shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

In United States v. McClour, No. 16-0455/AF (grant discussed here), and United States v. Taylor, No. 16-0482/AF (grant discussed here), CAAF is reviewing the propriety of the Air Force instruction to members that they must (as opposed to the more-common instruction that members should) find the accused guilty if the prosecution has proven the offense beyond a reasonable doubt.

Both McClour and Taylor are Air Force cases.

But the problematic instruction has also been used by military judges in the Naval service, and yesterday CAAF granted review of this issue in a Marine Corps case:

No. 16-0565/MC. U.S. v. Dalton C. Nickens. CCA 201500142. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

WHETHER THE MILITARY JUDGE ERRED WHEN HE INSTRUCTED THE MEMBERS, “IF, BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF A CHARGED OFFENSE, YOU MUST FIND HIM GUILTY OF THAT OFFENSE,” WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO, 430 U.S. 564, 572-73 (1977), AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.

No briefs will be filed under Rule 25.

This week at SCOTUS: The Solicitor General waived the right to respond to the cert. petition in Caldwell. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking three cases:

• Sullivan v. United States, No. 15-0186 (pend. conf. on Sep. 26) (CAAFlog case page)
• Akbar v. United States, No. 15-1257 (pend. conf. on Sep. 26) (CAAFlog case page)
• Caldwell v. United States, No. 16-209 (pet. filed on Aug. 15, resp. waived Aug. 23) (CAAFlog case page)

This week at CAAF: The next scheduled oral argument at CAAF is on October 11, 2016.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on September 7, 2016.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on September 15, 2016.

This week at the CGCCA: The Coast Guard CCA’s oral argument schedule shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

In United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page), a unanimous CAAF held that charged offenses may not be used under Mil. R. Evid. 413 to prove an accused’s propensity to commit the charged offenses, and also that the standard instruction given to members regarding how to handle such propensity undermines the presumption of innocence.

Last week, in United States v. Hukill, No. 20140939 (A. Ct. Crim. App. Aug. 16, 2016) (link to slip op.), the Army CCA held that CAAF’s decision in Hills does not apply to a judge-alone trial:

This case is far different than Hills as appellant elected to be tried by a military judge sitting alone. Although the military judge earlier in the proceeding ruled that the government could use propensity evidence in a manner found to be in error in Hills, this ruling became moot by virtue of appellant’s election for a bench trial. We do not share appellant’s concern that his “presumption of innocence” was somehow eroded by the military judge’s consideration of propensity evidence. “Military judges are presumed to know the law and to follow it absent clear evidence to the contrary.” United States v. Erickson,” 65 M.J. 221, 225 (C.A.A.F. 2007) (citing United States v. Mason, 45 M.J. 483, 484 (C.A.A.F. 1997)). We are satisfied that his view on the admissibility of propensity evidence under Mil. R. Evid. 413 was harmless beyond a reasonable doubt. We find no risk that the military judge would apply an impermissibly low standard of proof concerning both the presumption of innocence and the requirement that the prosecution prove guilt beyond a reasonable doubt. Simply put, we find nothing in the record to suggest that the military judge did not hold the government to its burden of proving appellant’s guilt beyond a reasonable doubt, or that the military judge applied a lesser standard in adjudicating the charges against the appellant.

Slip op. at 3.

Thanks to our reader for the tip.

In United States v. Bartee, No. 16-0391/MC (grant discussed here), CAAF is revisiting the improper exclusion of members on the basis of rank (which is not one of the Article 25 criteria for member selection) in the wake of last term’s decisions in United States v. Ward, 74 M.J. 225 (C.A.A.F. 2015) (CAAFlog case page), and United States v. Sullivan, 74 M.J. 448 (C.A.A.F. 2015) (CAAFlog case page).

Last week CAAF granted review in another case with an almost identical issue to the one granted in Bartee:

No. 16-0497/MC. U.S. v. Reece N. Tso. CCA 201400379. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following re-drafted issue:

WHETHER, AFTER DISMISSING AN INITIAL COURT-MARTIAL PANEL BECAUSE THE CONVENING AUTHORITY IMPROPERLY EXCLUDED CERTAIN RANKS FROM CONSIDERATION AS COURT MEMBERS, THE MILITARY JUDGE ERRED BY ACCEPTING A PANEL COMPRISED OF THE SAME DETAILED MEMBERS.

No briefs will be filed under Rule 25.

The NMCCA’s opinion is available here. The convening authority in Tso was not the same officer (or command) as the convening authority in Bartee.

Having discovered that General Abrams – the convening authority in the Bergdahl case – failed to review matters submitted by the defense before referring the case for trial by a general court-martial, and also that the General destroyed letters sent to him regarding his referral decision, the defense motion to replace General Abrams as convening authority (previously discussed here) seems to have found some traction.

Stars and Stripes reports here that General Abrams has been ordered to testify by telephone.

Last week CAAF granted review – and specifically invited amicus briefs from the appellate divisions – in an Air Force case that questions whether an appellate military judge may sit on both a Court of Criminal Appeals and the United States Court of Military Commission Review:

No. 16-0651/AF. U.S. v. Nicole A. Dalmazzi. CCA 38808. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. WHETHER UNITED STATES COURT OF MILITARY COMMISSION REVIEW JUDGE, MARTIN T. MITCHELL, IS STATUTORILY AUTHORIZED TO SIT AS ONE OF THE AIR FORCE COURT OF CRIMINAL APPEALS JUDGES ON THE PANEL THAT DECIDED APPELLANT’S CASE.

II. WHETHER JUDGE MARTIN T. MITCHELL’S SERVICE ON BOTH THE AIR FORCE COURT OF CRIMINAL APPEALS AND THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW VIOLATES THE APPOINTMENTS CLAUSE GIVEN HIS STATUS AS A SUPERIOR OFFICER ON THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW.

Briefs will be filed under Rule 25.

The Chiefs of the Appellate Defense and Appellate Government Divisions of the United States Army, the United States Coast Guard, and the United States Navy-Marine Corps are invited to file amicus curiae briefs on these issues. These briefs will be filed under Rule 26.

Just two years ago, in United States v. Janssen, 73 M.J. 221 (C.A.A.F. Apr. 15, 2014) (CAAFlog case page), a unanimous CAAF concluded that the appointment of a civilian Air Force employee to the Air Force Court of Criminal Appeals was invalid. Then, in another unanimous opinion issued last year in United States v. Jones, 74 M.J. 95 (C.A.A.F. Mar. 11, 2015) (CAAFlog case page), CAAF rejected application of the de facto officer doctrine to the appointment.

This week at SCOTUS: As discussed here, a cert. petition was filed in Caldwell v. United States, No. 16-209 (CAAFlog case page). I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking three cases:

• Sullivan v. United States, No. 15-0186 (pend. conf. on Sep. 26) (CAAFlog case page)
• Akbar v. United States, No. 15-1257 (pend. conf. on Sep. 26) (CAAFlog case page)
• Caldwell v. United States, No. 16-209 (pet. filed on Aug. 15, resp. due. Sep. 14) (CAAFlog case page)

This week at CAAF: The next scheduled oral argument at CAAF is on October 11, 2016.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on September 7, 2016.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Slape, No. 38801, on Thursday, August 25, 2016, at 10 a.m.

This week at the CGCCA: The Coast Guard CCA’s oral argument schedule shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.