A delayed entry 29 December 2020—a summary of a bit more than a week. Sorry, cannot resist a FB lawyer joke I received on Xmas Eve-- Other humour not in uniform.
No this is not about the election or politics it is a reminder to us all that editing, and proofreading can be impertinent. “A lawyer who filed a lawsuit challenging Georgia’s election process is attracting attention because of a typo near the end of the complaint. The verification paragraph said the lawyer verifies “under plentyof perjury” that the facts in the suit are true and correct. The phrase should read “under penalty of perjury.”
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In United States v. Briggs, 2020 U.S. Lexis 5989, the Supreme Court of the United States overruled the Court of Appeals for the Armed Forces (CAAF), holding that offenses punishable by death under the Uniform Code of Military Justice (UCMJ), including the offense of rape, have no period of limitations pursuant to Article 43, subsection (a), as it existed between 1986 and October 1, 2007. For reasons stated below, this decision may not be the last word on the interplay between Article 43’s periods of limitations and sex offenses.
"An active-duty Special Forces soldier has been charged with murder after three people were killed and three wounded in a shooting Saturday at a bowling alley in Rockford, Illinois, authorities said Sunday."
It appears the defendant has been charged by Illinois (where the death penalty has been abolished), and that the Army is only cooperating in the investigation. Link here. Congratulations to the following winners:
1. Best Brief: The Navy Government team in Upshaw. 2. Best Oral Argument: LT Joshua Fiveson in Upshaw. On Monday, December 21, 2020, SGT Bergdahl filed the following petition with CAAF: "No. 21-0091/AR. Robert B. Bergdahl, Appellant v. United States, Appellee. CCA 20200588. Notice is given that a writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on application for extraordinary relief and action on the petition for writ of error coram nobis was filed under Rule 27(b) on this date." Updated 12/28/20 with brief below.
Elizabeth M. BerecinManaging Editor The nominations are in--here are the top three in each category: Best Brief and Best Oral Argument. Vote now!
On December 9, 2020, CAAF issued their opinion in United States v. Garcia. The focal point of CAAF’s opinion, is not their decision to affirm the AFCCA’s ruling, rather it is their scathing reprimand of the Government’s conduct. The Court opens with the following:
“It is repugnant to the purpose and principles of the Fourth Amendment for an agent of the government to ‘knowingly and intentionally, or with reckless disregard for the truth’ include in an affidavit false information that is material to a search authorization request, or to make material omissions ‘that are de-signed to mislead, or that are made in reckless disregard of whether they would mislead, the magistrate.’… And yet, the Governments troubling conduct in the instant case compels this Court to underscore this essential point from the outset of this opinion” Garcia opinion here. The AFCCA dismissed with prejudice the conviction Staff Sergeant Clayton E. Turner (Appellant) for one specification of assault consummated by a battery, finding the evidence to be factually insufficient. The Court affirmed the convictions of four other specifications of assault consummated by a battery.
Opinion here. "No. 21-0030/AF. U.S. v. Kalab D. Willman. CCA 39642. 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 granted on the following issue: WHETHER THE LOWER COURT ERRED WHEN IT RULED THAT IT COULD NOT CONSIDER EVIDENCE OUTSIDE THE RECORD TO DETERMINE SENTENCE APPROPRIATENESS UNDER ARTICLE 66(c). Briefs will be filed under Rule 25." Elizabeth M. BerecinManaging Editor "'We don't know what he might do,' says one officer in the Pentagon. 'We are in strange times,' says another officer. Some senior military officers are trying to steer clear of the White House for the next month, rather than be in the President Donald Trump's orbit.
With just some 30 days to go before the US military watches its current commander in chief leave office, there is growing anxiety in the ranks about what Trump might do in these remaining days. Will the President order some unexpected military action, such as a strike on Iran, or will he somehow draw the military into his efforts to overthrow the election results? ... No military official CNN has spoken with recalls a recent time prior to Trump when top serving officials had to send the message they cannot get involved in election results. Let alone put out multiple messages to that effect." Link here. I for one really enjoyed and learned from Zeke's Scholarship Saturday posts. Look for more and also what I remember as excellent discussions following the posts. Phil CaveMJ Editor Report here, with commentary by Isaac Kennen below. Here is the Report's conclusion on military justice data:
"Conclusion on Military Justice Data As early as 1974, the DAF identified racial disparity in military justice actions. AFJAG is aware of the racial disparity in Article 15 actions and courts-martial and informs leadership at all levels of this disparity. Also, AFJAG analyzed the military judicial process to address the potential of racial bias. In 2016, the DAF determined there was no evidence of selective prosecution in courts-martial based on a review of courts-martial records under the guidelines set in the Supreme Court case Batson v. Kentucky6 The DAF also found no disparity among conviction rates between black and white service members. Based on the available data, this Review found no instances of intentional racial bias or discrimination after an accused entered the court-martial process. While the DAF has taken some action to address potential bias in the judicial process, it has not answered that next-level question of “why” racial disparity exists in military justice actions. AFJAG provides training to commanders highlighting that racial disparity exists; however, no training is provided on what causes the racial disparity and how to address the disparity. For more subjective cases such as AWOL or dereliction of duty, where the commander has discretion to impose disciplinary action and the severity of that disciplinary action, the DAF has not analyzed why racial disparity is present. This Review included interviews with members of the Disciplinary Actions Analysis Team (DAAT), which was established in 2017 to address racial disparity in military justice actions. These interviews revealed the DAAT, after meeting more than three years, was unable to ascertain the reason for such disparity. For more objective cases, such as marijuana drug use cases arising from random testing, this Review determined behavioral disparity accounts for at least some disparity indicated. However, the DAF must conduct further review to understand why there may be behavioral disparity among racial groups and how to address that behavioral disparity. Multiple studies show certain racial and age groups view marijuana use differently resulting in disparate use among those groups. (Ex 57) As of this Review, it appears the DAF has not examined these studies and considered how this behavioral disparity among its youngest enlisted members might be addressed."
On Wednesday, December 16, 2020, CAAF granted review on the following petition: "No. 21-0062/AR. U.S. v. Fernando Quinones-Colon, Jr. CCA 20200093. 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 CONVENING AUTHORITY'S FAILURE TO TAKE ACTION ON THE SENTENCE DEPRIVED THE ARMY COURT OF JURISDICTION UNDER ARTICLE 66, UCMJ. No briefs will be filed under Rule 25" Elizabeth M. BerecinManaging Editor The pandemic has exacerbated several existing problems at Guantanamo Bay, as Carol Rosenberg reported in Friday’s New York Times. Among these is the perennial difficulty of finding qualified judges to preside over the Military Commissions.
This week’s events demonstrate how acute the difficulty has become. On Monday, 14 December, the Military Commissions’ Chief Judge, Col. Douglas K. Watkins, USAR, JAGC, issued an order re-detailing himself to the case after determining that the current judge, LtC. Matthew N. McCall, USAF, JAGC, lacked the experiential qualifications to serve. On Friday, 18 December, Khalid Sheikh Mohammed filed a motion to stay Col. Watkins’ order, setting the stage for litigation over LtC. McCall’s qualifications. CAAF released their opinion in United States v. White, siding with the Appellant and reversing the NMCCA's application of the good faith exception in M.R.E 311(c)(3).
White opinion here. UP PERISCOPE
Dateline: 18 December 2020; a summary of the week. On 15 December 1791 “Following ratification by the state of Virginia, the first 10 amendments to the U.S. Constitution, known collectively as the Bill of Rights, become the law of the land.” As 2020 wraps up and the editors begin working on the "Top 10 MJ Stories of 2020," we are also soliciting nominations for the best brief at CAAF this year and also the best oral argument. After one week (next Monday), we will post the top three of each category and open voting to all readers. The editors will also choose their favorites of the top three in each category.
Submit a nomination (anonymously) here. The AFCCA affirmed the findings and sentence of Technical Sergeant Soren G. Gere (Appellant), finding no error to be materially prejudicial.
Opinion here. Much of the discussion here focuses on lawyers and judges in the military criminal justice system, but this leaves out a hugely important group of actors: the police. For example, it seems like a half-hearted measure to tweak factual sufficiency appellate review when the fact-development on the crime scene itself is botched from the start. With this in mind, consider this new article, with whistleblowers, from Army Times: Army CID is burned out and mismanaged by military police leadership, special agents say Brenner FissellEIC Briggs Analysis: Supreme Court Reverses CAAF in Unanimous Opinion on UCMJ Statute of Limitations12/15/2020 In a recent unanimous opinion, the Supreme Court reversed the judgement of the CAAF and held that the prosecutions for rape of three military service members did not have to be commenced within five years of the date of the commission of the charged offenses. The issue before the Court centered around the interpretation of the phrase “punishable by death” in the UCMJ. During the relevant period, the UCMJ provided that the offense of rape could be “punished by death,” and that an offense “punishable by death” could be tried and punished “at any time without limitation.” The government argued that “punishable by death” means capable of punishment by death under the penalty provisions of the UCMJ, and that respondents therefore could be tried for the rape offenses at any time. Respondents argued, however—and the CAAF held—that the phrase “punishable by death” means capable of punishment by death when all applicable law is taken into account. Respondents relied on the Supreme Court’s decision in Coker v. Georgia, 433 U. S. 584, 592 (1977), holding that the Eighth Amendment forbids a death sentence for the rape of an adult woman. Respondents argued that, in view of Coker, they could not have been sentenced to death, and therefore the statute of limitations for their crimes was the 5-year statute of limitations governing non-capital offenses. Essentially, the dispute hinged on whether “punishable by death” was a term of art under the UCMJ that should be interpreted solely based on the provisions therein, or if instead the Court should look beyond the provisions of the UCMJ in determining whether respondents could have actually been punished by death for their offenses, taking into account relevant Supreme Court jurisprudence. Notwithstanding the Court’s unanimous decision in support of the government, it acknowledged that there were “reasonable arguments on both sides,” yet “found the government’s interpretation” more persuasive for the following reasons: First, the Court found that the most natural source for the meaning of a statute of limitations within the UCMJ to be other law contained in the UCMJ itself. It therefore determined that “[i]n the context of the UCMJ . . . Article 120’s directive that rape could be ‘punished by death’ is the most natural place to look for Congress’s answer to whether rape was ‘punishable by death’ within the meaning of Article 43(a).” Second, the Court stated that a principal benefit of statutes of limitations is to provide clarity, and that: “If ‘punishable by death’ in Article 43(a) means punishable by death under the penalty provisions of the UCMJ, the rule regarding the latest possible date for commencing a rape prosecution is clear . . . By contrast, if ‘punishable by death’ meant punishable by death after all applicable law is taken into account, the deadline for filing rape charges would be unclear.” Third and finally, the Court noted that the factors that lawmakers take into account when fixing the statute of limitations for a crime, such as the difficulty of assembling evidence and putting together a prosecution, “differ significantly from the considerations that underlie its Eighth Amendment decisions.” The Court therefore reasoned that “it is unlikely that lawmakers would want to tie a statute of limitations to judicial interpretations of such provisions.” Justice Gorsuch filed a one-paragraph concurring opinion, stating that he “continue[s] to think this Court lacks jurisdiction to hear appeals directly from the CAAF.” Nonetheless, he joined the Court’s opinion reversing the CAAF, noting that “a majority of the Court believes we have jurisdiction, and I agree with the Court’s decision on the merits.” A future case might provide a vehicle for Justice Gorsuch to expound further on his jurisdictional concerns. Jeff CoyleArticle III Editor On November 23, 2020, in an unpublished opinion, ACCA affirmed the conviction of Sergeant Jesse E. Thompson (Appellant). ACCA held that the military judge did not abuse their discretion in denying a motion to strike the victim’s (DS) testimony, finding that the government was not required to produce a timeline that was created and later lost by the victim.
Thompson opinion here. ACCA affirmed the conviction, but modified the sentence of Specialist Jonathan Badgett.
Badgett opinion here. Hasan's case now proceeds to CAAF on direct review.
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