On remand, ACCA set aside Colonel Robert J. Rice's findings and sentence.
Rice opinion here.
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The AFCCA affirmed the findings and sentence of Cadet Ethan J. Walton, finding no error materially prejudicial to his substantial rights. Walton opinion here. Dwight Sullivan and Jonathan Potter gave an impressive lecture on the death penalty in the military yesterday. Three questions from the audience were intriguing and may be of interest to readers here: 1. Potter noted that only a large command will attempt to pursue a capital case because only a large command has the resources to do so. The audience wondered whether this would give rise to some sort of legal claim (probably Equal Protection?). [A thought: is this also true of other prosecution decisions, and if so, does it weigh in favor of centralizing disposition authority?] 2. Why are all of the current death row inmates in the military from the Army? 3. If there are so few capital cases, how would it be possible for a military JAG to become learned counsel given the requirement of second-chairing a previous capital case? Brenner FissellEIC UP PERISCOPE
Dateline: 13 November 2020 (as of 1000); a summary of the week’s events. SUPREME COURT
United States v. Bess, 80 M.J. 1 (C.A.A.F. 2020). United States v. Bess, 74 M.J. 70 (C.A.A.F. 2016). United States v. Bess, No. 201300311, 2018 CCA LEXIS 476 (N-M. Ct. Crim. App. Oct. 4, 2018) (unpub.). The QP: (1) Whether 10 U.S.C. § 825, which allows a military commander to hand select members to sit on a general court-martial panel, as applied in Pedro Bess’ case — in which an all-white panel convicted a Black defendant of sexual misconduct against a white woman — violates the Fifth Amendment; and (2) whether the lower court erred in declining to remand Bess' case for additional factfinding. The NMCCA upheld the conviction and affirmed the findings and sentence of Bradley M. Metz (Appellant). Pursuant to his pleas, Appellant was convicted of one specification of making a false official statement and one specification of obstruction of justice under Articles 107 and 134, UCMJ.
LawProf twitter is currently debating the propriety of a recent announcement by The Lincoln Project to shame Jones Day for representing the PA GOP in its election related litigation. In my view this is wrong, and further erodes the ever-weakening "non-endorsement" principle of legal representation: "A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities." ABA Model Rule of Prof. Conduct 1.2. The principle exists for obvious reasons, and takes on an especially important character in the practice of criminal law. If not for the non-endorsement principle, lawyers representing clearly guilty criminal defendants could be said to be "endorsing" the criminal conduct, with the result that no lawyers would agree to take on such a representation. A society that holds that legal representation in a criminal trial is a crucial bulwark against the oppressive use of government power, then, would accept the non-endorsement principle (at least for criminal cases). One of the unique and valuable aspects of the military justice bar is that it seems to take this seriously--lawyers are not "judged" or "shamed" for their client selection. Perhaps this is because uniformed lawyers are assigned/detailed to one side or the other, and they are often detailed to the opposite side at a later point. JAG resumes often read like this, and it is a good thing. In the civilian criminal law bar--especially in large cities--public defender and district attorney offices have morphed into armed camps, each erecting professional walls preventing any flow of personnel either way. Unfortunately, many professors must now advise even 1L students to choose all their internships carefully so as not to signal disloyalty to the "side" they hope to work for in the end. This is not good for our profession. N.B. The LawProf twitter debate on this issue led to the surfacing of someone who once ran afoul of the non-endorsement rule in the context of Guantanamo detainees: Cully Stimson at the Heritage Foundation. He noted that he eventually signed on to a 2010 Brookings Institute letter reaffirming the principle. Brenner FissellEIC Appellant was convicted, in accordance with a plea agreement, of desertion and sentenced to a bad-conduct discharge, 57 days of confinement, reduction to the grade of E-1, and a reprimand. On appeal, Appellant argues that his due process rights were violated when his case was not docketed with this court within 30 days of the convening authority's action. Finding no error or violation, the judgment was Affirmed.
Appellant’s trial concluded on April 2, 2019. On April 19, 2019, the military judge signed the decision in Appellant’s case. On July 2, 2019, the entry of judgment was signed. On July 3, 2019, the court reporter certified the record of trial (ROT). Due to some delay, the ROT was received by Appellant on September 13, 2019 and on September 19, 2019, the ROT was docketed with the court. At no time during this process did Appellant object to the delay or assert his right to timely review prior to April 22, 2020. Opinion here. "No. 20-0294/AF. U.S. v. Ryan M. Vanvalkenburgh. CCA 39571. On further consideration of the granted issues and the briefs of the parties, we conclude that Appellant forfeited his challenge to the constitutionality of Rule for Courts-Martial (R.C.M.) 912(f)(4) and that Appellant has not established plain error. We have determined that Appellant did not waive his constitutional challenge to R.C.M. 912(f)(4) by intentionally relinquishing a known right. We do not consider the possibility that the constitutional challenge was waived by operation of law under R.C.M. 905(e) or any other R.C.M. provision because the Government has not made this argument. Accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is hereby affirmed."
For reference: R.C.M. 912(f)(4) (4) Waiver. The grounds for challenge in subparagraph (f)(1)(A) of this rule may not be waived. Notwithstanding the absence of a challenge or waiver of a challenge by the parties, the military judge may, in the interest of justice, excuse a member against whom a challenge for cause would lie. When a challenge for cause has been denied, the successful use of a peremptory challenge by either party, excusing the challenged member from further participation in the court-martial, shall preclude further consideration of the challenge of that excused member upon later review. Further, failure by the challenging party to exercise a peremptory challenge against any member shall constitute waiver of further consideration of the challenge upon later review. "No. 21-0042/AR. U.S. v. Danny L. McPherson. CCA 20180214. Notice is given that a certificate for review of the decision of the United States Army Court of Criminal Appeals was filed under Rule 22 on this date on the following issue:
DID THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS ERR WHEN IT DISMISSED THE SPECIFICATIONS IN CHARGE I ON THE GROUNDS THAT THE STATUTE OF LIMITATIONS HAD EXPIRED?" Read the ACCA opinion here. UP PERISCOPE
Dateline: 6 November 2020 (as of 1000); a summary of the week’s events. SUPREME COURT CAAF
Once again, an appellate court grant on a Grosty issue. There is no ACCA opinion on their website so we could assume a summary disposition. The ACCA does not publish summary dispositions unlike NMCCA. The AFCCA affirmed Staff Sergeant Brian M. Schmitt’s findings and sentence, holding that the conviction was factually and legally sufficient and that his dishonorable discharge was an appropriate punishment.
Schmitt opinion here. "No. 20-0345/AR. U.S. v. Jacob L. Brubaker-Escobar. CCA 20190618. 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 personally asserted issue: WHETHER THE CONVENING AUTHORITY'S FAILURE TO TAKE ACTION ON THE SENTENCE AS A RESULT OF THE STAFF JUDGE ADVOCATE'S ERRONEOUS ADVICE DEPRIVED THE ARMY COURT OF JURISDICTION UNDER ARTICLE 66, UCMJ. Briefs will be filed under Rule 25." Elizabeth BerecinResearch Fellow ACCA affirmed the findings and sentence of Specialist Erick I. Nuno, finding that he was not deprived of his Sixth Amendment right to confront his accuser.
Nuno opinion here. ACCA affirmed the findings and sentence of Sergeant First Class Alan D. Ross, finding no error prejudicial to Appellant.
Ross opinion here. ACCA affirmed Staff Sergeant Danny L. McPherson’s findings of guilt and sentence but set aside and dismissedCharge I and its specifications. Contrary to his pleas, a military judge sitting as a general court-martial convicted Appellant of six specifications of indecent acts or liberties[1]that occurred in 2004, against his then ten-year-old biological daughter (KR) in violation of Article 134, UCMJ.[2] Appellant was sentenced to a dishonorable discharge, confinement for 15 years, and a reduction to the grade of E-1.[3]On appeal, ACCA set aside and dismissed Charge I and its specifications because they were time-barred. However, ACCA affirmed Appellant’s remaining findings of guilt and sentence.
McPherson opinion here. The Committee's conclusions after studying one year of cases:
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UP PERISCOPE
Dateline: 30 October 2020 (as of 1200). SUPREME COURT Fed. Dist. Ct. This matter is a petition for habeas corpus filed under 28 U.S.C. § 2241, challenging Petitioner's conviction by general court-martial. At the time of filing, Petitioner was confined at the United States Disciplinary Barracks in Fort Leavenworth, Kansas. This matter is before the Court on Respondent's Motion to Dismiss (Doc. 10) in light of the Petitioner having received a Presidential Pardon. Petitioner has filed a Response (Doc. 13), and Respondent has filed a Reply (Doc. 14). The Court held a hearing on the motion on January 8, 2020, and took the matter under advisement. The Court, determining that Petitioner's acceptance of the Pardon was an admission of his guilt leaving this matter without a case or controversy, finds that the motion should be granted. Note the discussion of whether accepting an unconditional pardon not based on innocence is in fact and admission of guilt. CAAF
There were various discovery issues at trial which caused a mistrial followed by a retrial. The initial NMCCA opinion. In that opinion the only issues raised were a double jeopardy claim and a failure to state an offense claim. However, the interesting issues now are: DID LTCOL KASPYRZK’S SUBSTANTIVE PARTICIPATION INAPPELLANT’S CASE WHILE SIMULTANEOUS LY ALLEGEDLYAPPLYING FOR EMPLOYMENT TO SERVE AS THE PROSECUTION’S EXPERT ADVISOR UNDERMINE THE PUBLIC’S CONFIDENCE IN THE JUDICIAL PROCESS? WERE THE TRIAL AND APPELLATE DEFENSE COUNSELINEFFECTIVE WHERE THEY FAILED TO FILE A MOTION TOCOMPEL THE GOVERNMENT TO PRODUCE REQUESTEDDISCOVERY REGARDING LTCOL KASPYRZK’S ALLEGED CONFLICT OF INTEREST AND FAILED TO RAISE THE ISSUE ONAPPEAL? It is not clear from the remand order if the military judge was applying for a position in the Navy’s version of TCAP. It seems to me based on the Spath Issue, the MJ issue in Bergdahl, and now this case that it’s a necessary voir dire question to the MJ about their retirement status and job prospects. These cases present an unhappy development and something the MJs should be thinking about sua sponte. "For nearly two decades, many talented attorneys have represented detainees at Guantanamo Bay. They include advocates at the Military Commissions Defense Organization, professors at more than a few elite law schools, and litigators from scores of the nation’s most prestigious law firms. Some of those attorneys, perhaps most, have shown a prudent appreciation for the fine line separating zealous advocacy from frivolous tactics designed only to delay and disrupt...." Al-Qosi v. United States, No. 20-1195 (D.C. Cir.) (Walker, J.). ![]()
The Military Death Penalty — Capital Punishment Under the Uniform Code of Military Justice Friday, Nov. 13, 2020, 1:00 p.m. Eastern/10:00 a.m. Pacific •Jonathan Potter, Esq., Lieutenant Colonel, USA (Ret.), Chief, Capital and Complex Litigation, U.S. Army Defense Appellate Division •Dwight Sullivan, Esq., Colonel, USMCR (Ret.), civilian counsel, Air Force Appellate Defense Division •Art Cody, Esq., Captain, USN (Ret.), Director, Criminal Programs, Veteran Advocacy Project, moderator ![]()
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The NMCCA affirmed the findings and sentence of Lance Corporal Tomas Rocha, Jr, finding no prejudicial error. However, the NMCCA ordered correction of the results of trial, that one of the charges of which Appellant was convicted should be characterized as "other sexual misconduct" as opposed to "sexual assault."
Rocha opinion here. Blog post here. Interesting comments below.
Elizabeth BerecinResearch Fellow On Wednesday, October 28, CAAF will hear oral arguments in United States v. Cardenas. The granted issue question is: WHETHER THE ARMY COURT, AFTER FINDING APPELLANT’S CONVICTIONS WERE MULTIPLICIOUS, ERRED IN PERMITTING THE GOVERNMENT TO CHOOSE WHICH OF THE APPELLANT’S CONVICTIONS TO DISMISS ON APPEAL.
Cardenas briefs here. United States v. Henry was originally scheduled to be heard on September 30, 2020, and was rescheduled for tomorrow, October 27, 2020.
CAAF will hear oral arguments in United States v. Henry, a case, whose issue was certified by The Judge Advocate General of the Army. TJAG puts forth this assignment of error to CAAF: DID THE MILITARY JUDGE ABUSE HIS DISCRETION IN EXCLUDING THE FOUR STATEMENTS ON WHICH THE PROSECUTION SOUGHT INTERLOCUTORY APPELLATE REVIEW, PURSUANT TO ARTICLE 62, UCMJ? CAAF briefs here. |
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