Here is the Federal Register entry. Geoff Corn on the potential impact of the change to a Military "DA." 28 July 2023: Executive Order on 2023 Amendments to the Manual for Courts-Martial, United States. Section 1. Part II, Part III, Part IV, and Part V of the Manual for Courts-Martial, United States, are amended as described in Annex 1, which is attached to and made a part of this order. The amendments in Annex 1 shall take effect on the date of this order, subject to the following[.] There is no Annex to the White House publication. The changes are not yet on the Federal Register site. Here is a FACT SHEET: President Biden to Sign Executive Order Implementing Bipartisan Military Justice Reforms. CAAF has decided the Gilmet case. In a unanimous opinion, the Court held that actual unlawful command influence occurred, and that the curative measures were insufficient. Crucial to the outcome, it seems, was that this was influence directed against defense counsel. Defense counsel are not fungible. Given this, unlawful influence directed at defense counsel becomes somewhat akin to structural error. Gilmet is significant more so in the disposition of CAAF that it represents: CAAF, resurgent. Guarding against UCI is at the core of CAAF's reason for existence. CAAF is often spoken of as a "bulwark" against UCI. “[A] prime motivation for establishing a civilian Court of Military Appeals was to erect a further bulwark against impermissible command influence.” Thomas, 22 M.J. at 393 (citing Hearings on H.R. 2498 Before a Subcomm. of the House Committee on the Armed Services, 81st Cong., 1st Sess. 608 (1949). But the Court, on its own volition, created a complicated multi-step burden shifting analysis to vindicate this right against UCI. It used the eddies created by this doctrinal maze to deny relief in the high-profile case of Bowe Bergdahl, rather than frankly addressing the reality of what had taken place. Gilmet shows, one hopes, that CAAF is reasserting itself as the bulwark it was meant to be. The Shaw comments in Gilmet demonstrate a serious problem in the culture of military justice--at least in the Marine Corps, which is far too small to be able to set up a system of its own that is not tainted by personal and professional allegiances (or vendettas). Today's decision represents an important message, sent by a civilian court, that the military must conform its system to norms of due process and independence. ![]()
Brenner FissellNMCCA has denied a petition in In re K.J. because it is not ripe--something Appellate Government had agreed with. Note that by statute and regulation, a trial counsel has to consult with and get permission from Appellate Government before filing an Article 62 appeal. See also R.C.M. 908. The trial debate relates to a Mil. R. Evid. 513. After litigating the issue, the final ruling of the MJ preceding the petition went as follows. [A]pplying J.M. v. Payton-O’Brien, the military judge provided that Petitioner had to elect whether or not to waive her Mil. R. Evid. 513 privilege to permit in camera review of these records. The military judge then forecast several possibilities as to what could happen if Petitioner did, or did not, waive the privilege for this limited review, depending on what the military judge might find in the records if he were permitted an in camera inspection. Rather than make an election, Petitioner filed a motion for reconsideration, which the military judge denied, explicitly finding that the diagnostic criteria for BPD were themselves not privileged. Again, the military judge gave Petitioner the option to waive the privilege for an in camera review, and a date by which to inform the court of her election: 3 April 2023. However, the Victim’s Legal Counsel [] requested a[n] 802[], informing the military judge that Petitioner would seek relief with this Court. As a result, the military judge suspended the date by which Petitioner was to make her election. Petitioner ultimately filed this Petition with the Court, and, so far as we are aware, has not yet made an election. Why not ripe?
This decision raises a number of questions, which I have decided to take out of the post. Comments are, however, welcome.
Cheers. On the Appellate Advocacy Blog, Robert Peck discusses how you might use a Reply to the Government's Answer to make a new argument. The biggest obstacle at that point to reorienting the case to a potentially winning argument is a reply brief should only respond to an opponent’s arguments and not launch new ones. New arguments raised for the first time in a reply brief are often forfeited and potentially waived. The terms forfeited and waived have different meanings for an appellate court. Forfeiture generally means a failure to make the timely assertion of a right or argument. Waiver means the intentional relinquishment or abandonment of a known right or argument. See United States v. Campbell, 26 F.4th 860, 872 (11th Cir.) (en banc), cert. denied, 143 S. Ct. 95 (2022).
No. 23-0085/AF. U.S. v. Jonel H. Guihama. CCA 40039. 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 hereby granted on the following issue: WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY ADMITTING A CONFESSION THAT WAS NOT TRUSTWORTHY BECAUSE IT LACKED SUFFICIENT CORROBORATION. An issue of note, Consistent with that authority, in United States v. Perkins, the CAAF acknowledged “[a] familiar principle of appellate practice is that an appellee or respondent may defend the judgment below on a ground not earlier aired.” 78 M.J. 381, 386 n.8 (C.A.A.F. 2019) (alteration, internal quotation marks, and citations omitted); see also United States v. Bess, 80 M.J. 1, 11–12 (C.A.A.F. 2020) (approving Court of Criminal Appeals’ decision to uphold the ruling of a military judge for a different reason than the ones on which the military judge relied). We also find persuasive the concurring opinion by Judge Hardy in Whiteeyes, which considered the findings testimony of an expert witness even though “the military judge did not have the benefit of the expert witness’ testimony when he ruled on Appellant’s motion.” 82 M.J. at 180 (Hardy, J., concurring in the judgment). Judge Hardy noted that testimony was “properly included in the joint appendix and can be considered by this Court.” Id. The opinion of the court in Whiteeyes similarly relied on that expert witness’s testimony. No. 23-0206/AF. U.S. v. Ryan M. Palik. CCA 40225. 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 hereby granted on the following issue: THE GOVERNMENT LOST THE ONLY TWO VIDEO-RECORDED STATEMENTS FROM SM, THE COMPLAINING WITNESS FOR EVERY CONVICTED OFFENSE. DID DEFENSE COUNSEL PROVIDE INEFFECTIVE ASSISTANCE BY FAILING TO FILE AN RCM 914 MOTION AFTER SM'S TESTIMONY? We find that Appellant has failed to meet his burden to demonstrate deficient performance by his trial defense counsel. Applying the Polk factors to the present case, it is uncontroverted that trial defense counsel did not file a motion under R.C.M. 914 for production of SM’s video-recorded statements to AFOSI. That said, we find that Appellant’s trial defense counsel have articulated a reasonable rationale for not doing so—they could not confirm that the video recordings in question ever existed, and feared they might exist. We also find that it was reasonable for Appellant’s defense counsel to question whether the video recorded interviews existed because the videos had never been viewed by AFOSI agents or any member of the prosecution team. In United States v. Flores, the court holds that creating a false set of PCS orders, presenting them to a landlord, and asking to be released from the rental because of a PCS clause is not punishable as a false official statement. The guilty plea was, therefore, improvident. The drug convictions were affirmed, as was the sentence.
United States v. CunninghamOf three issues, the Court wrote on a victim impact "statement" issue and an improper sentencing argument. Whether trial counsel’s sentencing argument was improper when she: (1) argued that Appellant’s uncharged, false statements were aggravating evidence after she had previously cited case law to the military judge that said false statements were not admissible as evidence in aggravation; and (2) told the military judge that he had seen the media and the world was watching, to justify her sentence recommendation. Expressly waived. "In this case, trial defense counsel “did not just fail to object,” but “affirmatively declined to object” when answering “no” to the military judge’s question." Had the court taken the issue, they probably would have found the arguments didn't impact the military judge because he is presumed to know the law, especially as TC had just pointed it out, and would follow the law. The AFCCA did address the issue and found that it wasn't improper to argue the world is watching because it wasn't a sufficient threat as seen from cases like, United States v. Norwood, 81 M.J. 12 (C.A.A.F. 2021); United States v. Voorhees, 79 M.J. 5, 14-15 (C.A.A.F. 2019)); United States v. Wood, 18 C.M.A. 291, 40 C.M.R. 3, 9 (C.M.A. 1969)). Perhaps the MJ asking if there were any objections was a nuanced ask? There once was a MJ who would famously respond to an objection with "not on that basis counsel." Clue, there may be an objection but you haven't said the magic words yet. Next. Whether the Air Force Court properly applied United States v. Edwards, 82 M.J. 239 (C.A.A.F. 2022) in finding error—but no prejudice—for a victim impact statement that included videos, personal pictures, stock images of future events, and lyrical music that touched on themes of dying, saying farewell, and becoming an angel in heaven. The members had convicted the Appellant of murder, for which the MJ sentenced him to 18 years confinement. The dead child's mother and grandmother testified in sentencing without objection. The mother also gave an unsworn victim impact statement. The victim impact statement consisted of her orally addressing the military judge while using a PowerPoint slideshow that consisted of pictures, videos, and somber music. The PowerPoint presentation contained eleven slides, including animations which included transitions, appearing and disappearing text, and slides crumpling like paper that is being thrown away. It also included over fifty still images; four still images which were stock images of future life events which ZC would not experience (such as a first day at school, marriage, and graduation); and embedded presentations that automatically played video with accompanying audio. CM then finished her victim impact statement orally. CM stated that “all the slides [she] presented . . . videos, pictures, words . . . all come from [her].” |
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