United States v. AbdullahA GP SPCM. We have another case in which ACCA addresses the inadequate and perfunctory delay explanations for dilatory post-trial processing. Abdullah was a one-day case, and the transcript was 101 pages. The court notes it took 96 days, a little over a page a day. United States v. Johnson"The first assignment of error asserts the military judge erred in admitting three statements under the excited utterance exception to hearsay." The defense objected to two of the statements. ACCA found an error but no prejudice. The third statement was not objected to, was considered forfeited, and was examined under the plain error test. The court jumped the question of error and went straight to the prejudice analysis. Generally, ACCA found the two objected-to statements were indicative of "reflection and deliberation as opposed to being spontaneous, excited, or impulsive." ACCA points out that the MJ failed to "put his full analysis on the record and did not address the elements required under Arnold [25 MJ 129, 132 (CMA 1987)], nor did he provide analysis for the third element using the Donaldson factors, thereby affording him less deference by this court. United States v. Flesher, 73 MJ 303, 312 (CAAF 2014)." This failure was meaningful because "Although we acknowledge this is a close call, we afford the military judge little deference due to his failure to place his full analysis on the record." Cheers, Phil Cave
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United States v. Maebane, IIIA panel of officer and enlisted members at a general court-martial convicted Appellant, contrary to his pleas, of one specification of reckless endangerment and one specification of involuntary manslaughter, in violation of Articles 114 and 119, Uniform Code of Military Justice [UCMJ]. Of several issues, the most noteworthy is the MJ's refusal to admit a co-accused's "confession" proffered under Mil. R. Evid. 807, although the MJ allowed broad cross-examination. Cheers.(Disclaimer: no comments from us because we represented HM1 Davis.) Can it be a crime to masturbate with a (child?) sex doll alone in your room? The majority avoids this issue, but Judge Johnson spots the glaring constitutional problem and faces it head on. Why would CAAF want ACCA to first weigh in on a pure issue of constitutional law? This remand is a waste of everyone's time. The sooner CAAF can clean up the poorly-reasoned Marcum test, the better. And if they won't, maybe the Supreme Court will. No, not that one. This one was convicted of second-degree murder Monday in federal court in Pensacola, Florida. Wilkerson was charged under the Military Extraterritorial Jurisdiction Act[.] Howard Koplowitz, Military.com 8 May 2024 (revised).
The Military Extraterritorial Jurisdiction Act ("MEJA") was enacted on November 22, 2000 and is codified at 18 U.S.C. §§ 3261-67. MEJA permits the exercise of criminal jurisdiction over crimes committed outside the United States if at the time of the offense the offender was (1) employed by the Armed Forces outside the United States; (2) accompanying the Armed Forces outside the United States; or (3) a member of the Armed Forces. No prosecution may be commenced against a member of the Armed Forces, however, unless at the time of prosecution the member is no longer subject to the Uniform Code of Military Justice ("UCMJ") or the member is charged with committing the offense with one or more other defendants not subject to the UCMJ. Per the DoJ Justice Manual. CAAF will sit for the final time this term next week. Yet, of all the cases it heard this term, only seven opinions have been published. CAAF does not impose a June deadline, as the Supreme Court does, but experienced courtwatchers say it is rare for a large number of opinions to be released after June. What's to explain the backlog? Fractured court? A = Author, D = Dissent, C/D = Concur/Dissent, X = in the majority for last season's opinions. Compare this with the CAAF Annual Report 2023, which includes 19 additional Ex Writs without a written opinion. When appellants and their families ask, "How long will this take?" Look at the charts beginning on page 13.
Has your license to practice law been suspended or otherwise restricted? It probably doesn't matter for court-martial purposes, but it might be good to know. United States v. CistiSeptember 2020, Captain (Capt) CP is certified under Article 27(b). 15 March 2021, Capt CP's state bar suspended him (for reasons unwritten). 29 November 2021, Capt CP administered the oath to the Appellant’s commander when charges were preferred. 19 January 2022 Capt CP represents the government at the Appellant's Article 32. In March 2022, the SJA discovered the problem, and Capt CP was removed from legal duties, but no action was taken to revoke his 27(b) certification. (The unstated assumption is that Capt CP had forgotten to inform his supervisors of this suspension.) The MJ denies a defense motion to dismiss based because an attorney “must be both qualified and designated” as a judge advocate in order to perform judge advocate functions, and when Capt CP had lost his standing to practice law in March 2021 he was no longer qualified to serve as a judge advocate. Therefore, the Defense reasoned, Capt CP was not eligible to administer the oath to Lt Col P in November 2021, nor to represent the Government at the preliminary hearing in January 2022, and the Charge and specifications should be dismissed. In response, the Government contended that because Capt CP’s designation as a judge advocate had not been withdrawn, he remained eligible both to administer the oath to Lt Col P and to represent the Government at the preliminary hearing. AFCCA finds no fault with the MJ's ruling because TJAG is the only person who can revoke the certification, which had not been done even at the time of trial. The court does not cite the United States v. x, , by NMCCA, which decides similarly when it comes to a military judge. But it appears there is a small Capt CP trailer park. As I was writing this, a new FR notice came across the transom of proposed DoN changes to the RRP. This notice of appearance must: (a) State the jurisdiction(s) in which they are licensed and eligible to practice law, (b) Certify that they are in good standing with each jurisdiction, (c) Certify that they are not subject to any order disbarring, suspending, or otherwise restricting them in the practice of law, and Perhaps a change would be for the services to require military counsel to also file a notice of appearance in each case, as does the U.S. Attorney in federal court, rather than the current practice.
United States v. ClarkDeadlines are real. Appellant requests this court set aside the findings where the military judge denied appellant's motion to compel a witness due to untimeliness. Where trial defense counsel filed the motion after the entry of pleas and after the deadline set by the pretrial order, we find the military judge did not abuse his discretion in determining defense failed to show good cause to file the motion out of time and affirm. The MJ focused on the justification for the delay in filing the motion, and did not address the government's additional objection of relevance and cumulativeness. Essentially, The MJ likely found and ACCA found the defense was dilatory. The possibility of IAC was not before the court. While the defense proffered a timeline, the timeline did not elucidate what steps defense took to investigate Mr. Us location prior to their private investigator contacting him on 9 June 2022, which was two days after the motions deadline, five months after the court's issue of the pretrial order, and ten months after preferral of the original charges, was not a surprise witness—someone defense had just discovered. Mr. El wrote his lengthy statement in March of the previous year and defense listed him as a witness on their initial request as y as 15 March 2022.3 The defense stated they were investigating Mr. s information from 1 April until 9 June but provided no more details about the actions they took to locate MrAduring those two months, or when they hired the private investigator, or what other hurdles their due diligence failed to overcome. MILITARY JUSTICE Actions Needed to Help Ensure Success of Judge Advocate Career Reforms. Report to the Committee on Armed Services, House of Representatives, U.S. GAO, May 2024. Senior officials from each service also raised concerns about the newly established Office of Special Trial Counsel (OSTC) and the likelihood that it will exacerbate issues of inexperience within certain litigation positions. Generally, judge advocates are expected to become eligible for assignment to the OSTC after 2 to 4 years of litigation experience. OSTC experience standards, coupled with the limited number of litigators who meet these requirements, will likely force the services to rely on inexperienced litigators to serve as defense counsel or other positions that lack similar requirements. Further, these officials stated that the focus on OSTC experience standards could lead to a potentially significant imbalance in the experience levels of defense and prosecution assigned to litigate the same case. United States v. WaadaLike DNA in epithelial cells, post-trial paperwork errors persist. In a published opinion, NMCCA addresses the question of the EoJ. Although Appellant submitted his case on the merits without assignment of error, we note that the Entry of Judgment [EOJ] in this case does not comply with Rule for Courts-Martial [R.C.M.] 1111(b)(1)(A) because it does not adequately summarize each specification of the charge. Although we find no prejudicial error, we take this opportunity to define what is required in an EOJ to provide guidance to the trial judiciary on an issue that all too frequently requires correction on appeal. We therefore take action in our decretal paragraph. In accordance with R.C.M. 1111(c)(2), we modify the EOJ and direct that it be included in the record. United States v. ShelbyInvestigations can take a long time, often months, sometimes years. Then there's the UCI and the PCS season. 9 Feb. 2022 -- referral of sex offenses charges to GCM. 3 feb. 2023 -- MJ dismisses some charges because of UCI. April 2023 -- back to court. Although now there's a potential issue with the defense counsel from the first go at prosecution because it appears to be PCS time for the counsel--off to the USNA as an instructor. As part of the MJ's ruling on an IMC request, the MJ dismisses a specification. April 2024 -- in a published opinion, NMCCA says the MJ made some mistakes. The convening authority correctly regarded the request as not clearly claiming an attorney-client relationship. By imposing on the convening authority a duty to look beyond Appellee’s express representation of no attorneyclient relationship, the military judge applied an incorrect legal principle and absolved Appellee from his burden to clearly claim the existence of such a relationship. As such, the military judge abused his discretion by applying an incorrect view of the law. Nonetheless, we reach the same conclusion as the military judge that the convening authority improperly denied the IMC request, but we do so for a different reason. NMCCA helpfully discusses the difference between appellate standards of review and the different standards applicable at trial. In the process, the court resurrects a charge that the MJ had dismissed for "cumulative error" reasons. The cumulative error doctrine was not born in military courts, but has been used by military appellate courts for more than seven decades as an expansion of the mandate in Article 59(a), UCMJ, that authorizes military appellate courts to set aside a finding only if an error “materially prejudices the substantial rights of an accused.” The cumulative error doctrine is a test for prejudice that looks retrospectively at a trial’s execution and results to assess the “cumulative effect of all plain errors and preserved errors.” Under the doctrine, criminal courts of appeal determine if “‘a number of errors, no one perhaps sufficient to merit reversal, in combination necessitate the disapproval of a finding.’” We then reverse only if we find that the cumulative effect of the errors denied an appellant a fair trial. Judge Gross concurs in the result, but does not believe the IMC issue was properly before the court. He ends with a time-worn admonition. Despite the fact that we vacate the military judge’s ruling, nothing in this opinion should be read as condoning the Government’s behavior in how it has sought to prosecute Appellee up to this point. The military judge’s ruling sets forth a series of concerning actions and decisions by the Government both in the current court-martial and the prior proceedings that could be construed to demonstrate a “win at all costs” mentality. Trial counsel would be wise going forward to remind themselves of the Supreme Court’s famous exhortation[.] See also n. 80.
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