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There has been a question about the most recent amendments to the Manual. Here is a link to those affecting offenses committed after 26 January 2022. These amendments shall take effect as of the date of this order, subject to the following: (a) Nothing in these amendments shall be construed to make punishable any act done or omitted prior to the date of this order that was not punishable when done or omitted. (b) Nothing in these amendments shall be construed to invalidate any nonjudicial punishment proceeding, restraint, investigation, referral of charges, trial in which arraignment occurred, or other action begun prior to the date of this order, and any such nonjudicial punishment, restraint, investigation, referral of charges, trial, or other action may proceed in the same manner and with the same effect as if these amendments had not been prescribed. United States v. WittIn 2005, a general court-martial consisting of officer members convicted Senior Airman Andrew P. Witt (Appellant), contrary to his pleas, of one charge and two specifications of premeditated murder; and one charge and specification of attempted premeditated murder. The panel sentenced Appellant to death. Witt's appeal bounced up and down resulting in a resentencing hearing, because of IAC during sentencing. Witt is now sentenced to LWOP. The issue in Witt is prosecutorial misconduct during the sentencing argument and prejudice. The granted issue is, During sentencing proceedings the trial counsel urged the panel members to consider how the sentence they imposed would reflect on them personally and professionally, and suggested that the members would be responsible for any harm Appellant committed in the future. Did the trial counsel’s sentencing argument constitute prosecutorial misconduct that warrants relief? We are told that,
Micheal S. Pardo, What Makes Evidence Sufficient? 65 ARIZ L. REV. 431 (2023). When is a party’s evidence sufficient in a civil case? When is the prosecution’s evidence sufficient in a criminal case? The answers to these questions play several important roles—both practical and constitutional—throughout civil and criminal litigation. As a practical matter, a judicial determination that evidence is insufficient may end a case pre-trial (for example, at summary judgment); may end a trial without getting to a jury (resulting in a judgment as a matter of law); or may overturn a jury’s verdict in a civil case or a guilty verdict in a criminal case. As a constitutional matter, the right to a jury trial in civil cases depends on whether parties have sufficient evidence to get to trial, and criminal defendants have a due process right to not be convicted based on insufficient evidence. Despite the importance of the sufficiency issue, the legal doctrine separating sufficient from insufficient evidence is imprecise and unclear, and judicial reasoning applying the doctrine in particular cases is often frustratingly opaque. United States v. MaysThe Appellant was twice seen holding a cellphone over a shower stall in the SLU while a male was showering. He was charged with attempted wrongful, knowing, nonconsensual view of a person's private area, where there was an expectation of privacy. No-one could testify about what the cellphone screen showed and forensic analysis of the phone could not find any relevant evidence. Although, perhaps as circumstantial evidence, there was evidence of water damage to the cellphone. The Appellant's theory at trial and on appeal was the lack of legal sufficiency because viewing the person by cellphone image was different from viewing the actual person. ACCA rejected that theory because the cellphone "facilitated" the wrongful viewing. The granted issue was WHETHER THE OFFENSE OF INDECENT VIEWING UNDER UCMJ ART. 120C INCLUDES VIEWING OF A VISUAL IMAGE OF THE PRIVATE AREA OF ANOTHER? The CAAF agrees with ACCA. The "real-time" viewing facilitated through the cellphone makes this different from later viewing an image or video that has previously been recorded. The attempt charge is valid because the Appellant only stopped one of the times because he saw a potential witness and fled the scene--some consciousness of guilt there. We acknowledge that a distinction can be drawn between the private area of a person and a visual image of the private area of person. But that is not the question in this case. The question in this case is whether the meaning of the term “viewing” in Article 120c(a)(1), UCMJ, is broad enough to cover both viewing the private area and viewing a contemporaneously produced visual image of the private area of a person. For the reasons explained above, we have concluded that it is. Memo to the field: One last point requires attention. Although we hold that the evidence was legally sufficient for the military judge to find Appellant guilty of the two specifications of As an aside there is a helpful discussion of the rule of lenity with reference to Muscarello v. United States, 524 U.S. 125, 138-39 (1998).
Update 31052023: See United States v. Jones (AFCCA) regarding an Article 117a offense. United States v. GrijalvaWho said that the "service connection" requirement is dead after Solorio. If dead, Congress may have and the CGCCA has resurrected it for a specific offense--something that Congress could do. Grijalva was convicted of knowingly and wrongfully, without specific consent, sharing nude pictures in fake Tinder account. Grijalva hacked into a friend of a friend's Snapchat account, downloaded nude and other pictures of the friend. He then created a fake Tinder account with the friends name and used her pictures. He promised a meeting with "her" and in the process made $200.00 based on the solicitation. He was charged with an unenumerated offense under Article 134(2). On appeal, he alleged that the charge and specification was preempted by Article 117a. CGCCA disagreed. Appellant was convicted of an unenumerated specification under Article 134, UCMJ, alleging: (1) that he knowingly, wrongfully, and without explicit consent broadcast an intimate visual image of Ms. B.C., who is identifiable from the visual image or from information displayed in connection with the visual image when he knew or reasonably should have known that the visual image was made under circumstances in which Ms. B.C. retained a reasonable expectation of privacy regarding any broadcast and when he knew or reasonably should have known that the broadcast of the visual image was likely to cause harm, harassment, or emotional distress for Ms. B.C. or to harm substantially Ms. B.C. with respect to her safety, business, calling, career, reputation, or personal relationships; and (2) that, under the circumstances, Appellant’s conduct was of a nature to bring discredit upon the armed forces. This embraced all but two of the elements of wrongful broadcast of an intimate visual image under Article 117a, UCMJ: (1) that the intimate visual image involves a person who is at least 18 years of age at the time the intimate visual image was created; and (2) that the accused’s conduct, under the circumstances, had a reasonably direct and palpable connection to a military mission or military environment. The court rehearses the statutory language and legislative history of Article 117a. In doing so, the court concludes that the Article is limited to situations where the victim is another servicemember or veteran. The issue arises over the interpretation of "(4) whose conduct, under the circumstances, had a reasonably direct and palpable connection to a military mission or military environment," in the statute. The statutory language makes clear that Article 117a is tailored to address nonconsensual sharing of intimate images of adults that, “under the circumstances, had a reasonably direct and palpable connection to a military mission or military environment.” Article 117a(a)(4). Legislative history shows that the specific statutory purpose for doing so was to target the sharing/broadcasting of intimate images of servicemembers and veterans without their permission. In Grijalva, the victim was a civilian. With that in mind, the court finds no difficulty in deciding against Grijalva on the preemption argument. But I think the question to be asked of CAAF is more nuanced. Is it arguable that "whose conduct, under the circumstances, had a reasonably direct and palpable connection to a military mission or military environment," is a blending of the second element of an Article 134(1) or (2) offense--conduct prejudicial to good order and discipline and/or service discrediting? The full text of Article 117a states a) Prohibition.-Any person subject to this chapter- The opinion notes that a 2017 DoJ recommended (ltr at 10) the additional element to address First Amendment concerns. DoJ cites to United States v. Wilcox, 66 M.J. 442, 449 (C.A.A.F. 2008). And as part of the discussion suggests that an enumerated offense under Article 134 would be appropriate. That's not in the 2019 manual.
United States v. HarveyA panel of officer and enlisted members convicted Appellant, contrary to his pleas, of one specification of indecent exposure in violation of Article 120(c), Uniform Code of Military Justice [UCMJ], but acquitted him of one charge of sexual assault and one charge of battery, charged as violations of Articles 120 and 128, UCMJ. He was sentenced to one year, RiR, and a DD. In a published opinion, the court tells us Regarding factual sufficiency, this is the Court’s first case to address the application of the recently amended Article 66, UCMJ, standard of review.[*] The legal issue relates to the standard of review and what does the phrase "deficiency of proof" mean. Appellant contends that a “deficiency in proof” means a weakness in the evidence presented to support an element, not a complete absence of evidence on an element. The Government contends that “deficiency in proof. . . must allege a defect in evidence that, if valid, would undermine at least one element of an offense.” Complete absence of evidence on an element of a charged offense would, of course, render a conviction legally insufficient because a reasonable fact-finder could not find all the essential elements beyond a reasonable doubt.” The parties in this case substantially agree on this point. The reviewing court must give deference to the fact finder having heard and seen the witness, not "recognizing" the fact finder heard and saw the witnesses--a higher standard. However, We hold that “appropriate deference” does not mean that this Court can no longer make any credibility determinations of witnesses, as the Government argues. This is because the statute explicitly allows this Court to “weigh the evidence and determine controverted questions of fact.” Obviously, testimony is part of the evidence to be weighed, and the qualifier in the subsection requires “appropriate deference” rather than entirely eliminating credibility determinations regarding testimony from the evidence to be weighed. And because members do not make special findings or explain how they weighed the evidence admitted at trial in reaching a general verdict (apart from sometimes indicating a minor variance in charged language or making a finding of guilt to a lesser included offense), we find that “appropriate deference to the fact that the trial court saw and heard the witnesses and other evidence” is a higher standard than the prior “recognizing that the trial court saw and heard the witnesses.” Further, thee was disagreement between the parties about what the phrase ""clearly convinced" and "against the weight of the evidence" means. We find that the revised statute requires a departure from the prior practice, and the standard for factual sufficiency has become harder for an appellant to meet. It is clear that the factual sufficiency standard in the revised Article 66, UCMJ, statute has altered this Court’s review from taking a fresh, impartial look at the evidence requiring this Court to be convinced of guilt beyond a reasonable doubt, to a standard where an appellant has the burden to both raise a specific factual issue, and to show that his or her conviction is against the weight of the evidence admitted at trial. Thus, Congress has implicitly created a rebuttable presumption that in reviewing a conviction, a court of criminal appeals presumes that an appellant is, in fact, guilty. The court went on to address the specific deficiencies raised by the appellant and found the charges legal sufficient. The appellant also challenged the MJ's failure to give a mistake as to consent defense instruction. The court finds that a mistake as to consent is not a viable defense to the charged conduct. It did not help the appellant's cause that the offenses took place "in public." The court relies on United States v. Carruthers, 64 M.J. 340 (C.A.A.F. 2007) and United States v. Bailey, 77 M.J. 11 (C.A.A.F. 2017) for its analytical framework.
The court also found (harmless) error in submitting a stipulation for a prior court-martial as a personnel record under R.C.M. 1001(b)(2). |
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