Miller presents an important reminder that simple cases are not always simple.
UA cases are usually simple. You have official records showing a person is assigned to a unit, the person was absent from the unit, and they did not return to military control until a particular date. Whether the UA was just that, a UA, or a desertion, the offense is committed on the day of absence or formation of the intent to desert and is not a continuing offense. Miller suggests that when an accused goes absent in 1978 and is not returned until 2022, after being arrested in Soddy Daisy, TN, people ought to be checking the documentation and the statute of limitations. In 1978 the SoL was three years. In Miller, the charges were not preferred until 2022. Yep, people in Admin or Legal didn't do a preferred charge sheet at the 30 day mark when Miller was administratively considered a deserter and may not have done a DD 553. Miller plead guilty. When asked if he understood the term to waive all waivable motions Miller said yes. When the DC was asked about any motions to be waived the reply was "no[ne]." Ooops. Because of this, no inquiry was made by the MJ about waiver of the obvious SoL defense. Miller's case was presented on its merits. NMCCA points out that it wasn't until the court specified the issue that any judge advocate in the process became aware of the SoL issue. And, of course points out that the Government arguments supporting waiver don't hold water if all the lawyers in the process weren't aware of the issue. I'm assuming, without checking, that with the many years of dead time, Miller might still be processed for an OTH. Miller already has a HD for four years in the Marine Corps. Zimmerman has a couple of interesting points. (3) Did the Appellant receive ineffective assistance of counsel. (5) Did the military judge abuse his discretion when admitting propensity evidence under Military Rules of Evidence (Mil. R. Evid.) 404(b) and 413. (6) Did the military judge abuse his discretion in admitting certain sentencing evidence. (7) Did trial counsel commit prosecutorial misconduct during his argument on sentencing. The defense had information that [A]pproximately seven months before the sexual assault she had gone on one date with Appellant. SP told the agents that during the date she and Appellant had “made out,” and that he had consensually kissed her when he dropped her off at a friend’s house after the date. However, Appellant and SP did not continue to date thereafter and had no further romantic relationship. The defense made a deliberate choice not to make a Mil. R. Evid. 412 motion, nor did they raise the 412 information during cross-examination. DC explained that not seeking to confront SP with evidence of her prior date with Appellant was an intentional strategic and tactical choice. DC explained the Defense assessed the date had low probative value as to whether SP was attracted to Appellant and consented to sexual intercourse approximately seven months later. To the contrary, the fact that there was only one date followed by seven months of inactivity could be interpreted as evidence of SP’s lack of sexual interest in Appellant. In addition, trial defense counsel anticipated SP would be a canny adverse witness who would likely portray her date with Appellant in a negative light on cross-examination, potentially further damaging the Defense’s case. DC explained how he intended to use other methods—such as the perceived improbability of certain aspects of SP’s account, certain allegedly inconsistent statements SP made about the sexual assault, and her motives to fabricate the allegation—to undermine SP’s credibility, such that attempting to confront SP about the date was unnecessary, risky, and of dubious probative value. Not unreasonably, the court did not find IAC. The opinion suggests the DC did what we do in making a value-added--devaluation analysis. The analysis can be more important to the defense. What value is added to the defense case, how might the prosecution case be devalued, and, just as importantly, what value-added tax may be imposed by the prosecution's rebuttal or use of that evidence?
United States v. Davis Date & Time:15 Nov 23 at 1300 ACM:40370 Panel:2 (AFCCA) Location:Judge Abraham Lincoln Marovitz Courtroom - Chicago-Kent College of Law, Illinois Institute United States v. Jennings 31 Oct 23 - 10003 Panel 3 (AFCCA) American University Washington College of Law United States v. Sergeant CHAS E. PHILLIPS
Hearing Date/Time Oct 16, 2023 13:00 Location: Campbell University School of Law Counsel for Appellant Lam; Talley Panel 2 (ACCA) Counsel for Appellee Todorow; Rodriguez Judges Fleming; Penland; Pond GO TO CASE for the briefs. Tuesday, October 10, 2023
Order Granting Petition for Review No. 23-0210/AR. U.S. v. Isac D. Mendoza. CCA 20210647. 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 APPELLANT'S CONVICTION FOR SEXUAL ASSAULT WITHOUT CONSENT WAS LEGALLY SUFFICIENT. Air ForceIn Lake, "A panel of officer members convicted Appellant of 14 specifications of fraudulent use of a credit card, debit card, or other access device, and two specifications of larceny"--the proceeds of which amounted to over $16K from the Navy Exchange. The primary issue is the admissibility of evidence of a "layered" conspiracy offered under Mil. R. Evid. 404(b). The facts are interesting, to say the least. The scheme began in May 2019, after Appellant’s boyfriend AA and his friend CH put Appellant in contact with AP, a former military member, who they said could help Appellant make money by using her military status to purchase gift cards and electronics for AP at the NEX. The evidence presented at trial showed Appellant received fraudulent prepaid debit cards from AP that contained stolen credit card account information on the magnetic strip, but did not contain a security chip. The effort to track down the Appellant are also interesting in their complexity.
Tuesday, October 3, 2023
Order Granting Petition for Review No. 23-0215/CG. U.S. v. Mark J. Grijalva. CCA 1482. On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue: WHETHER THE UNENUMERATED ARTICLE 134, UCMJ, OFFENSE CHARGED IN SPECIFICATION 2 OF CHARGE III IS PREEMPTED BY ARTICLE 117a, UCMJ, WHICH CONGRESS ENACTED TO ADDRESS THE WRONGFUL BROADCAST OR DISTRIBUTION OF INTIMATE VISUAL IMAGES. Conference: Transparency in Military Justice
Please join the National Institute of Military Justice at their upcoming in-person conference on transparency in military justice (zoom attendance also available). Hear from path-breaking members of the Pentagon press corps, as well as from scholars and advocates who have deep experience with the legislative process and with court proceedings, as they try to open a window into military justice. Optional registration is here--if attending via Zoom, registration is required. Panel I: The Role of the Press | 10:00AM-11:30AM Moderator: Brenner Fissell, NIMJ David Philipps, National Correspondent, The New York Times Kyle Rempfer, Editor, The Washington Post Thomas Brennan, Founder, The Warhorse News Jessica Kegu, Producer, CBS News Panel II: Public Involvement in Lawmaking and Rulemaking | 12:30PM--1:45PM Moderator: Rachel VanLandingham, NIMJ Eugene Fidell, Senior Research Scholar, Yale Law School Jamie Jackson, Partner, K&L Gates Don Christensen, Of Counsel, Solomon Law Panel III: Public Access to Courts | 2:00PM--3:15PM Moderator: Franklin Rosenblatt, NIMJ Seth Berlin, Senior Counsel, Ballard Spahr Sarah Matthews, Deputy GC, Pro Publica Brittany Warren, Senior Associate, WilmerHale A Confrontation CaseThe Supreme Court has granted a petition in Smith v. Arizona. The outcome may be relevant for prosecutions of drug cases based on a urinalysis or DNA-involved cases.
Issue: Whether the confrontation clause of the Sixth Amendment permits the prosecution in a criminal trial to present testimony by a substitute expert conveying the testimonial statements of a nontestifying forensic analyst, on the grounds that (a) the testifying expert offers some independent opinion and the analyst’s statements are offered not for their truth but to explain the expert’s opinion, and (b) the defendant did not independently seek to subpoena the analyst. See more at SCOTUSblog. Prof. Friedman says, “Yesterday, the Supreme Court granted certiorari in Smith v. Arizona, No. 22-899, a case that might help provide some clarity much needed since the Court's decision in Williams v. Illinois.” We say may because of how the prosecution usually presents urinalysis lab results at court-martial compared to what may have happened in Smith. Miscellaneous Docket - Filing
No. 23-0258/AR. Rene D. Alfaro, Petitioner v. Judges of the United States Army Court of Criminal Appeals, Respondent. Notice is given that a petition for extraordinary relief in the nature of a writ of mandamus was filed under Rule 27(a). Orders Granting Petition for Review No. 23-0204/MC. U.S. v. Thomas H. Tapp. CCA 202100299. It is ordered that said petition is granted on the following issue: WAS APPELLANT DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO AN IMPARTIAL JUDGE? No. 23-0225/AR. U.S. v. Michael L. Wilson. CCA 20210276. It is ordered that said petition is granted on the following issue: WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL ERROR BY ADMITTING APPELLANT'S NOTEBOOK UNDER MILITARY RULE OF EVIDENCE 404(b). The granted issue is not discussed in the opinion below. The Supplements are not available online. |
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