"No. 20-0267/AF. U.S. v. Ryan G. Uribe. CCA 39559. 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 IN FINDING THE MILITARY JUDGE DID NOT ABUSE HIS DISCRETION IN DENYING A JOINT MOTION TO RECUSE." Lower court opinion here. "On 8 March 2018, the Defense moved to have Judge Rosenow recuse himself from the case, on the basis that Judge Rosenow’s friendship with the senior trial counsel assigned to the case, Major (Maj) BJ, would undermine “public confidence in the fairness of the trial.” Attached to the motion was a summary of the Defense’s interview of Maj BJ on 8 March 2018, wherein he disclosed the following information: Maj BJ met Judge Rosenow in 2012, but their interactions were limited until they were both assigned as senior trial counsel based in the Washington, D.C., area beginning in mid-2014. During the following year, they discussed legal issues in the office and occasionally spent time together off-duty. Maj BJ attended Judge Rosenow’s bachelor party and wedding in 2015. In the summer of 2015, Maj BJ was reassigned to be a senior trial counsel based at Travis AFB, California....On some unidentified date Judge Rosenow’s wife went into labor while Judge Rosenow and Maj BJ were both out of town; Maj BJ’s girlfriend went to the hospital and was present for the birth." Kareem v. Haspel: Do you have a right to know if you are being targeted for a drone strike?7/9/2020
Last week, the government filed its brief in opposition in the case of Kareem v. Haspel, which is now pending in the D.C. Circuit Court of Appeals. The appellant, Bilal Kareem, is a U.S. journalist who has spent much of the past decade reporting from the civil war in Syria. After a number of close calls, specifically five drone strikes in which he was nearly killed, Kareem developed a credible fear that he had been mistakenly included on the so-called "Kill List," the individuals for whom the use of lethal force is authorized abroad under the government's acknowledged but still highly classified targeted killing/assassination program.
In honor of the impending retirement of Judge Margaret Ryan from the U.S.C.A.A.F., I have commissioned a CAAFlog festschrift. Look for a series of essays commemorating her service later this summer. Brenner FissellEIC "This memorandum responds to the July 6, 2020 white paper by Professor Schlueter and Dean Schenck. Much of their submission is recycled from material generated years ago in connection with the Response Systems to Adult Sexual Assault Crimes Panel (RSP). This memorandum does not seek to provide a point-by-point rebuttal. Rather, the Group of Experts has focused on a few contentions that are so far wide of the mark as to cast doubt on the white paper as a whole."
Brenner FissellEIC The CAAF daily journal for 1 July--
No. 20-0288/MC. United States, Appellant v. Michael J. Brown, Appellee. CCA 201900050. Notice is hereby given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this date: DID THE LOWER COURT ERR FINDING THAT IT HAD POTENTIAL JURISDICTION? Appellee will file a brief under Rule 22(b) on or before the 9th day of July, 2020. On May 24, 2020, the CAAF decided United States v. Bess, a case about racial discrimination in member panel selection. In light of Bess, the CAAF issued a summary disposition on June 24, 2020 remanding United States v. Jeter back to the NMCCA. Below is the summary of the United States v. Jeter opinion from 2019.
Today Prof. VanLandingham pointed out this article, indicating bipartisan support for the new Military Justice Improvement Act: https://thekatynews.com/2020/07/02/sens-cruz-gillibrand-grassley-offer-bipartisan-military-justice-improvement-act-as-amendment-to-defense-bill/ Brenner FissellEIC "This white paper recommends that Congress reject proposals that would remove a commander’s prosecutorial discretion and instead place it in the hands of senior armed forces lawyers....
Brenner FissellEIC Here are the results of our anonymous poll. The poll asked whether or not commanders should retain prosecutorial discretion over felonies. This one was more mixed than our previous poll about factual sufficiency. Stay tuned this week for more coverage of this prosecutorial discretion issue, including recent updates from Congress. Brenner FissellEIC We are pleased to announce that Dr. Michel Paradis is joining as the new Law of Armed Conflict Editor, with topics to include the law of war and military commissions. As the Lorance case reminds us, these issues can arise in military justice cases. Michel is currently a senior appellate defense counsel at the Military Commissions Defense Organization (appropriate disclosures and disclaimers will be forthcoming). He is well known at the DC Circuit as the attorney who litigated most of the significant cases involving the contours of the law of war in the United States. Welcome Michel! Brenner FissellEIC Thanks to a reader for tipping us off to a development in a high profile case:
https://www.armytimes.com/news/your-army/2020/06/30/army-sexual-assault-prosecutor-acquitted-of-rape-and-battery/ Last week, the AFCCA decided United States v. O'Bryan, a case about cruel and unusual punishment.
UPDATE to the below: CAAF has granted reconsideration in this case.
"No. 19-0365/AR. U.S. v. Jason A. Scott. CCA 20170242. On further consideration of the granted issue, 79 M.J. 308 (C.A.A.F. 2019), Appellee's motion to dismiss the granted petition, and appellant [sic] defense counsel's failure on multiple occasions to file a brief on behalf of Appellant as ordered by this Court, it is ordered that the grant of review is vacated, that the petition for grant of review is denied, and the motion to dismiss is denied as moot." Perhaps CAAF should consider whether the attorney in question should remain a member of the Court's bar. Brenner FissellEditor-in-Chief In March 2017, Haggart had sexual intercourse with 15-year-old “AN,” after the two met on Tinder. Haggart denied knowing who AN was during an investigation conducted by the Air Force. Sometime after, Haggart began a non-physical relationship with another minor, “AW.” Haggart’s commander issued orders directing Haggart to have no contact with AW. However, Haggart disobeyed and communicated with AW through his friend via email. Haggart was confined in the Bibb County Jail for 55 days before being transferred. A Military judge found Haggart guilty of one specification of false official statement, one specification of failure to obey a lawful order, and one specification of sexual assault of a child, in violation of 10 U.S.C. §§ 892, 907, 920b.
Haggart raises three issues on appeal: (1) whether the military judge abused her discretion by refusing to admit evidence of other sexual behavior by AN; (2) whether the military judge abused her discretion when she permitted AW to testify while wearing a high school softball uniform; and (3) whether the conditions of Haggart’s post-trial confinement were cruel and unusual under the Eighth Amendment and 10 U.S.C. § 855. Just yesterday two pieces came out weighing in on the debate about commanders and prosecutorial discretion: Letter from Commanders Letter of Profs. Corn, Jenks, and MacDonnell For a contrary view, see this prior report (I signed it, but in my view I would go farther and extend this proposition to misdemeanor offenses as well):
Brenner FissellEIC "No. 19-0198/NA. U.S. v. Willie C. Jeter. CCA 201700248. On consideration of the granted issues, the record in this case, and the opinion of this Court in United States v. Bess, __ M.J. __ (C.A.A.F. May 14, 2020), it is ordered that the judgment of the United States Navy-Marine Corps Court of Criminal Appeals is vacated and the case is remanded to that Court for further consideration in light of Bess." Our MJ editor will be writing more about this soon. "No. 20-0232/AR. U.S. v. Christopher B. Hukill. CCA 20140939. On consideration of Appellant's petition for grant of review of the decision of the United States Army Court of Criminal Appeals, we note that in affirming the sentence, the Court of Criminal Appeals stated that the approved sentence included confinement for four years when in fact the adjudged and approved sentence included confinement for two years. Accordingly, it is ordered that the petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed as to findings and to only so much of the sentence as provides for reduction to pay grade E-1, forfeiture of all pay and allowances, confinement for two years, and a bad-conduct discharge." Was this just a typo? Brenner FissellEIC In an article circulated recently on SSRN’s new Military Law listserve, Col. John Loran Kiel, Jr. argues for an amendment to the text of Article 37 of the Uniform Code of Military Justice (UCMJ) to rectify what he considers a series of inconsistent opinions in the unlawful command influence (UCI) jurisprudence. His analysis of the case law centers on the decisions in Barry and Boyce, both high profile sexual assault cases, exploring the extent to which they show inconsistencies in the way the court has tended to weigh factors like the mantle of command authority and prejudice to the accused in actual and apparent UCI claims. Col. Kiel proposes to rectify these inconsistencies by amending the text of Article 37 to explicitly overturn these holdings.
Actually, what to do is the subject of NMCCA's (published) Order in United States v. Harper, issued 26 June 2020.
LINK Appellate clients sometimes "disappear." They've been placed on appellate leave and don't bother to keep their contact information up to date. That's a problem for appellate counsel who need to talk to the client. The client needs to know what issues will be raised and most importantly appellate counsel needs to know if there are any "Grosty" issues. So, what to do when a client disappears? Yesterday, the CAAF granted a discretionary petition for review on "whether Article 2, UCMJ, violates Appellant's rights to equal protection where it subjects the conduct of all fleet reservists to constant UCMJ jurisdiction, but does not subject retired reservists to such jurisdiction." This case comes to the CAAF from the NMCCA. For the complete order granting review, see the link below: https://twitter.com/steve_vladeck/status/1276161088682430466?s=21 James TaglientiSenior Intern Recently, the AFCCA decided United States v. Cink, in which the Court reviewed an involuntary manslaughter conviction.
|
Links
CAAF -Daily Journal -Current Term Opinions ACCA AFCCA CGCCA NMCCA Joint R. App. Pro. Global MJ Reform LOC Mil. Law Army Lawyer Resources Categories
All
Archives
April 2022
|