I am frequently asked what the JAG corps is looking for in aspiring law student applicants. What should I tell them? Could anyone who has served on a selection board shed light on this process? Any help appreciated. Brenner FissellEIC
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"What do you folks think, other than looking forward to all the Foxtrots, Novembers, Quebecs, and Uniforms? Worthwhile promotion of privacy, serious interference with public right of access to court records, both, neither? Does it matter that this is the military justice system, rather than normal state or federal court.
Rumors that the NMCCA almost opted for the alternative of using witnesses' porn star names appear to be unfounded." Original Post Here. The primary argument is that Bergdahl should have known about Nance's Spath issues earlier and included the argument in regular briefing. The case is distinguished from Nashiri in only one footnote. The Government wisely refrained from relying on their personal opinions about Nance's reputation for integrity. The brief contains no warning to "tread lightly." ![]()
UPDATE: The Government filed an amended pleading, removing an erroneous claim that Bergdahl's filings were not timely (and removing a cheeky citation to opposing counsel Eugene Fidell's scholarly treatise on CAAF rules). ![]()
Brenner FissellEIC The AFCCA affirmed the findings and sentence of SSgt Kaleb D. Willman, finding that he suffered no prejudice to his substantial rights.
Willman opinion here. Editor's Note: This case raises interesting issues about remedies for prisoners. In anticipation of the start of the court's term, CAAFlog is seeking to add two interns to its staff. If you, or someone you know, is interested in applying to become an intern at CAAFlog, please send an email with your resume (include class rank) to Elizabeth Berecin at [email protected]. In the subject field, please write “CAAFlog Internship Application." Resumes will be accepted on a rolling basis. CAAFlog interns can expect to gain writing experience and invaluable knowledge about the military justice system. Primary duties will be the analysis of new developments in the law--especially new opinions from the CCAs. Additionally, interns may be asked to help CAAFlog editors with research projects. Interns can expect their weekly time commitment to not exceed six (6) hours a week, unless additional responsibilities are undertaken. All internship duties will be conducted remotely. If you have any questions, please refer them to Elizabeth Berecin at [email protected]. Elizabeth BerecinResearch Fellow The AFCCA held that Nicholas A. Matichuk's findings and sentence were correct in law and fact, and that no error materially prejudiced his substantial rights.. Accordingly, the findings and sentence were affirmed.
Matichuk opinion here. "By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Property and Administrative Services Act, 40 U.S.C. 101 et seq., and in order to promote economy and efficiency in Federal contracting, to promote unity in the Federal workforce, and to combat offensive and anti-American race and sex stereotyping and scapegoating, it is hereby ordered as follows:" https://www.whitehouse.gov/presidential-actions/executive-order-combating-race-sex-stereotyping/ Phil CaveMJ Editor "A colonel in the Marine Corps was named Thursday to preside as the military judge in the long-running death penalty trial of Khalid Shaikh Mohammed and four other prisoners at Guantánamo Bay, Cuba, who are accused of plotting the Sept. 11, 2001, attacks.
The colonel, Stephen F. Keane, is currently serving as the circuit military judge at Camp Pendleton, Calif., the senior judge on the West Coast for the Marine Corps. Before that he was commanding officer of Security and Emergency Services at Camp Pendleton, responsible for the brig, firefighting and policing on the sprawling 125,000-acre installation with 38,000 residents and about 30,000 commuters." -- Phil Cave @ GMJR MJ Editor Phil Cave recently learned in a correspondence with the NMCCA clerk of court that "We now use pseudonyms (instead of initials) for all witnesses, not just for victims and minors..... Rather that [sic] redact out all names, the filings, opinions, and orders will use the same pseudonyms for a given case so that they can be more easily understood than if we redacted all names as the other CCAs plan to do. This is reflected in NMRAP Rule 17.5, Table of Pseudonyms. See attached. Note that the “first filer,” typically the appellant, will be responsible for creating the Table of Pseudonyms that the government and Court will use for the given case." Pseudonyms for all witnesses in court documents? "Tables" of pseudonyms? This is going overboard. In fact, it may be creating constitutional problems. There is generally a presumption of transparency in a court opinion; this is rebutted only in special cases such as minors. The reasons for the transparency presumption are obvious, and are rooted in the right to publicity in criminal proceedings. "The rule rather is that under appropriate circumstances anonymity may, as a matter of discretion, be permitted. This simply recognizes that privacy or confidentiality concerns are sometimes sufficiently critical that parties or witnesses should be allowed this rare dispensation. A necessary corollary is that there is a judicial duty to inquire into the circumstances of particular cases to determine whether the dispensation is warranted." James v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993) (courts should consider the following factors: "whether the justification asserted by the requesting party is merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a matter of sensitive and highly personal nature; whether identification poses a risk of retaliatory physical or mental harm to the requesting party or even more critically, to innocent non-parties; the ages of the persons whose privacy interests are sought to be protected; whether the action is against a governmental or private party; and, relatedly, the risk of unfairness to the opposing party from allowing an action against it to proceed anonymously"); see In re Sealed Case, No. 19-1216, 2020 WL 4873248, at *2 (D.C. Cir. Aug. 20, 2020) ("The presumption of openness in judicial proceedings is a bedrock principle of our judicial system....That presumption is both 'customary and constitutionally-embedded[.]'")(applying Jacobson factors). Brenner FissellEIC Good news. NMCCA will shortly follow the example of CGCCA and be posting appellate filings on line. Briefs can help at trial--ideas flow from briefs into your motions at trial. There is one interesting change in Rule 17 (which I believe a post will follow). Phil CaveMJ Editor The AFCCA, finding error in the military judge’s analysis, reversed Senior Airman Matthew C. Harrington’s motion to dismiss for a violation of his speedy trial rights.
afcca.law.af.mil/afcca_opinions/cp/harrington_-_misc._dkt._no._2020-02.u.pdf The AFCCA affirmed the findings and sentence of Airman First Class Antonio V. Simon, finding no error materially prejudiced Appellant's substantial rights.
Simon opinion here. UP PERISCOPE
Dateline: 20 September 2020 (as of 0900). You may find some repetition of specific posts—I do that here so you have an easy summary of everything rather than hunting-and-pecking. CAAF
Whether Appellant is entitled to sentence relief for the unreasonable 322-day post-trial processing delay between the sentencing and initial action, and whether the detailed appellate defense counsel’s failure to assign any errors to the Army Court denied Appellant the effective assistance of counsel. A pleading in the Bergdahl case (filed today) reveals that the military judge, Jeffery Nance, was pursuing employment with the US Dept. of Justice while presiding over the case. Of course, the same conduct by military commission judge Vance Spath led the D.C. Circuit to vacate most of his rulings in the case of the alleged USS Cole bomber. In the words of Judge Tatel, Spath's conduct "cast an intolerable cloud of partiality" over the proceedings. Here, Nance used the ruling in which he denied Bergdahl's first UCI motion as his writing sample in his job application. Thus, in his employment application to an executive branch agency headed by the President, Nance highlighted his writing ability by producing a motion in which he beat back a claim that the President had acted improperly. Does an "intolerable cloud" equate with an "intolerable strain?" ![]()
Here is the accompanying reply to the Govt's reconsideration opposition: ![]()
Brenner FissellEIC Given that there is no PACER system or online docket access at CAAF or the CCAs, please feel free to email filings you think are worth sharing with the broader community.
The NMCCA affirmed the findings and sentence of SSgt William J. Scott, finding Appellant's substantial rights were not materially prejudiced.
Scott opinion here. The issue: what mens rea should be inferred when an element is textually silent on the required mens rea? ![]()
Brenner FissellEIC The AFCCA affirmed the findings and sentence of Senior Airman Troy A. Nolen, after finding actual UCI, but prejudice in Appellant's UCI issue. The court also considered two other issues not raised by Appellant.
Nolen opinion here. "No. 20-0339/AR. U.S. v. Michael R. Motteler, Jr. CCA 20180512. 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, and the decision of the United States Army Court of Criminal Appeals is affirmed.* * It is directed that the promulgating order be corrected by changing the finding to Specification 3 of the Charge from "Guilty" to "Not Guilty."" CAAF granted to fix this typo, but not to address a rather interesting issue of statutory interpretation. Does the "intent" mens rea in the below offense apply only to the act element of exposure, or also to the act element of "indecent manner": “Any person subject to [the UCMJ] who intentionally exposes, in an indecent manner, the genitalia . . . is guilty of indecent exposure . . . .” UCMJ art. 120c(c). "Indecent manner" is defined as "conduct that amounts to a form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.” UCMJ art. 120c(d)(6). This might have been construed to contain an implicit mens rea--after all, these loaded terms may carry some notion of intentionality--but the lower court instead effectively held that this was a strict liability element. The definition of indecent manner seems hopelessly vague, with an unclear mens rea. This could have been an opportunity for CAAF to clarify it. Maybe counsel did not raise this issue? Brenner FissellEIC Appellant was found guilty of multiple drug crimes and was sentenced to a bad-conduct discharge, confinement for ten months, forfeiture of all pay and allowances, and reduction to the grade of E-1. On appeal, he noted “potential” post-trial errors, but did not specify what those were. Under Article 66, UCMJ review, the AFCCA identified three issues. (1) Whether the signed State of Trial Results (“STR”) and EoJ must be modified when the pleas and findings to both charges I and II were omitted; (2) whether prejudicial error exists when there is no documentation in the record of trial that the convening authority considered Appellant’s clemency matters; and (3) whether the record of trial is defective when the audio recordings of the court-martial sessions contain five additional audio files that are recordings of conversations in the courtroom when the court-martial was not in session. In a Per Curiam opinion, the Court found that (1) the STR and EoJ did not need to be modified; (2) there was no prejudice to Appellant regarding clemency; and (3) the audio recordings made the record of trial defective and returned it for a certificate of correction.[1] 1.The omissions on the STR and EoJ were immaterial Appellant’s STR and EoJ failed to reflect his pleas and findings for Charge I and II. Since the Appellant pled guilty to both charges, this was a clear error. However, the Court found that omitting the pleas and findings was immaterial to determining Appellant’s criminality as long as they were accurate. Although the Court noted that these documents should be carefully prepared, omitting this information was not an issue. Further, the AFCCA indicated that R.C.M 1111(c)(2) permits The Judge Advocate General (“TJAG”) and the court itself to correct minor errors on an EoJ when they are discovered on appeal. And after considering whether to fix the EoJ, the Court declined to do so. 2. Appellant was not prejudiced by the convening authority’s review of the clemency letters After being sentenced, Appellant submitted undated clemency letters, which requested that the convening authority disapprove of the adjudged forfeitures. However, when the convening authority issued its decision, it did not indicate that it reviewed the letters and did not disapprove of the forfeiture.[2] In its analysis, the AFCCA emphasized that the letters were undated, so it was unclear whether they were received within the ten day time period provided by R.C.M. 1106(d)(1). Nevertheless, the Court reviewed whether the record of trial must show that the letters were considered. The Court decided that (1) although the convening authority normally documents whether clemency matters were considered, it is not required; and (2) Appellant had the opportunity to file a post-trial motion about the clemency matters, but did not. Accordingly, the Court then had to determine whether he waived or forfeited the issue. Using their authority under Article 66, UCMJ, the Court decided that forfeiture was the appropriate standard, and conducted a plain error analysis.[3]Ultimately, it found that (1) even if the error were plain or obvious, he has not shown prejudice; and (2) his brief specifically stated that he suffered no prejudice from a post-trial processing error. 3. The audio recordings made the trial record defective The certified record of trial included five additional recordings that were conversation in the courtroom while the court was not in session. Further, it sounded like the audio was from people who were unaware that they were being recorded. As a result, the Court found that it was an error to include these recordings on the disc placed in the original record of trial and ordered for it to be corrected. [1]The opinion was issued by Judges Mink, Lewis and D. Johnson. [2]However, the convening authority did reduce Appellant’s confinement by one month. [3]Appellant must show (1) there was an error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right. James TaglientiSenior Intern ACCA affirmed the findings and sentence of Sgt Clovis H. Castro, finding his plea substantial in both law and fact.
Castro opinion here. Filed in the case of United States v. Snyder. ![]()
Editor's Update: Here is the argument for a five-judge court. ![]()
From a Reuters Special Report released today:
"Gary Jackson, who was discharged from the Marine Corps nearly three decades ago, is trying to sue the Navy, alleging discrimination that ultimately cut short his career. He said a supervisor transferred him at a Marine base in Arlington, Virginia, and then said, “That’s one less Black Staff Sergeant,” according to a written statement by a witness submitted in the case. If Jackson prevailed, troops could seek legal recourse under Civil Rights Act protections against workplace discrimination. But legal experts are unsure whether the Supreme Court will agree later this year to take up the issue, seeing the case as a longshot after lower courts ruled against him. In an amicus brief in support of Jackson’s motion, Protect Our Defenders and another advocacy group, the Black Veterans Project, called the EO process a “woefully inadequate system for addressing racial bias or discrimination.”" ![]()
ACCA, in an unanimous decision affirmed Private Jesse L. Pimental-Torres' findings of guilt and affirmed only so much of his sentence as provides for a dishonorable discharge, confinement for eight months, reduction to E-1, and total forfeiture of all pay and allowances.
Opinion here. |
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