Prof. Berman at Sentencing Law & Policy notes a cert denial in Davis v. United States, No. 22–5364, that prompted this short dissent authored by Justice Jackson and joined by Justice Sotomayor. Our criminal justice system today is “for the most part a system of pleas, not a system of trials.” Lafler v. Cooper, 566 U.S. 156, 170 (2012). Against this backdrop, this Court has recognized that the loss of an opportunity for a favorable plea offer due to an attorney’s deficient performance can violate the Sixth Amendment right to effective counsel. Id., at 169–170; see also Missouri v. Frye, 566 U.S. 134 (2012). Petitioner Quartavious Davis alleged, and the Eleventh Circuit did not dispute, that he satisfied the first prong of the Strickland ineffective-assistance-of-counsel standard because his attorney failed to initiate plea negotiations with the Government. The question presented, then, is how can a defendant like Davis show “prejudice” as a result of this failure?...
Prof. Friedman doesn't post often, but when he does it's worth the read. Another good decision in a fresh-accusation case The en banc published opinion in United States v. Wheeler addresses the newer MJA SPCM where the Appellant challenges the referral as violative of the Fifth and Sixth Amendments. A footnote suggests two similar cases were also included within the certified question. Appellant was charged with a single specification of sleeping on post, an offense for which the President has authorized a maximum punishment of confinement for one year, forfeiture of all pay and allowances for one year, and a dishonorable discharge. Appellant’s charge was referred to a judge-alone special court-martial in accordance with Articles 16 and 19, UCMJ. Appellant moved to dismiss for a lack of jurisdiction, arguing that the referral of his case to a judge-alone special court-martial violated his rights under the Fifth and Sixth Amendments to the Constitution. Motion denied; convicted and sentenced to 15 days’ confinement. Articles 16 and 19 create a military judge alone. Congress also delegated to the President the authority to prescribe further regulatory limitations to the new judge-alone special court-martial’s jurisdiction. Rule for Courts-Martial [R.C.M.] 201(f)(2)(E)'s right to object to a judge-alone special court-martial do not apply here. As discussed below, although the question before us focuses on the convening authority’s referral action, we decline to cabin our analysis to this step in the military justice process. We will examine first whether Articles 16 and 19 and R.C.M. 201(f)(2)(E) facially violate Appellant’s Fifth or Sixth Amendment rights. “The constitutionality of an act of Congress is a question of law that we review de novo.” If we find these articles and the President’s implementing rules to be constitutionally valid (and we do), we next turn to how they were applied in Appellant’s case. During oral argument the appellant conceded no Fifth Amendment violation and focused on the Sixth Amendment claim. The court went ahead to discuss both claims in order to properly address the certified issue.
1. If a victim testifies on sentencing--the rules of evidence apply the same as for any other witness. Article 6b does not waive the rules of evidence when a victim testifies in sentencing. (Note, the victim gave both sworn and unsworn statements.) Failure to follow the rules (even without defense, or judge, objection) gets the defense and government and court to agree there was error and a new sentencing hearing. 2. It is NEVER EVER a good idea for an accused (or one of his witness's)[1] to impeach the verdict. Long gone are the days when we could legally seek reconsideration of the findings even through sentencing. Although an accused is provided a wide berth in the content of his unsworn statement, there are certain limits in what matters he may raise before the sentencing authority. United States v. Grill, 48 M.J. 131 (C.A.A.F. 1998). Specifically, the Court of Appeals for the Armed Forces has recognized that an accused is generally prohibited from impeaching the findings of the factfinder. United States v. Porter, No. ARMY 20110470, 2013 CCA LEXIS 946, at *8 (A. Ct. Crim. App. Oct. 31, 2013). Note, Porter arose from TC arguing that the accused had failed to impeach the verdict, "Appellant now complains that trial counsel's repeated comments during sentencing argument that appellant never denied the assault during his unsworn statement was improper argument. We agree." [1] See, e.g., United States v. Westcott, ACM 39936, 2022 CCA LEXIS 156 (A. F. Ct. Crim. App. Mar. 17, 2022) (unpub.) rev. denied 82 M.J. 438 (C.A.A.F. 2022).
Everything written by Prof. Orin Kerr is worth reading. Orin S. Kerr, Terms of Service and Fourth Amendment Rights. Almost everything you do on the Internet is governed by Terms of Service. The language in Terms of Service typically gives Internet providers broad rights to address potential account misuse. But do these terms alter Fourth Amendment rights, either diminishing or even eliminating constitutional rights in Internet accounts? In the last five years, many courts have ruled that they do. These courts treat Terms of Service like a rights contract: By agreeing to use an Internet account subject to broad Terms of Service, you give up your Fourth Amendment rights. Helems was convicted of one specification of false official statement, one specification of leaving the scene of an accident, one specification of reckless driving resulting in injury, one specification of negligent homicide, and one specification of involuntary manslaughter, for conduct arising from an episode of erratic and dangerous driving that occurred in the early morning hours of 1 January 2020 near Joint Base Charleston, South Carolina. A passenger in the vehicle died and another was injured. After the findings were announced, the military judge conditionally dismissed the negligent homicide (Article 134, UCMJ) upon the condition that the involuntary manslaughter charge (Article 119, UCMJ) survived appellate review. NMCCA holds that Charge II (Article 111, UCMJ – leaving the scene of an accident) fail[s] to state an offense when it does not allege that Appellant’s vehicle struck anyone, nor does it allege that anyone other than a passenger in Appellant’s vehicle was injured[.] The remaining findings were affirmed as was the sentence.
As expected, a writ appeal petition has been docketed for In re MW. I was going to post about this and discussions among some of us a few years ago about when might it be appropriate to try and have a military judge declare an SVC as a de facto party to the court-martial (and thus subject to R.C.M. 701 and Brady). We were sanguine about the motion getting off the ground. In re MW may move the ball a little--but let's see what CAAF does.
United States v. Alsobrooks. The court finds the MJ erred in
United States v. Gloverstukes. An Article 62 appeal. The military judge had dismissed two allegations of assault because they failed to state an offense under Article 128b (DV). They did not expressly allege that appellant committed a "violent offense" against his intimate partner, they failed to state an offense. The specifications alleged: ACCA finds the MJ erred. See United States v. Heng, No. ARMY 20210404, 2022 CCA LEXIS 377 (A. Ct. Crim. App. Jun. 24, 2022) (unpub.) for a discussion of the maximum sentence for 128b v. 128.
"Appellant’s case is before this court for the sixth time" begins the current decision in United States v. Rodriguez.
2013: Guilty (mixed pleas/members) to 15 specifications of violating a lawful general regulation; one specification of violating a lawful order; one specification of making a false official statement; one specification of consensual sodomy; two specifications of obstructing justice; and two specifications of adultery, one specification of aggravated sexual assault by causing bodily harm;4 one specification of abusive sexual contact by causing bodily harm; one specification of nonforcible sodomy;6 one specification of aggravated sexual contact by using strength; one specification of wrongful sexual contact; and one specification of indecent exposure. Sentenced to 27 years, DD, TF, RiR. 2015: Remand to correct post-trial errors. 2016: AFCCA dismisses several of the convictions and remands for a new sentencing hearing. 2017: Members sentence him to six years, DD, TF, RiR. 2019: CAAF sends back to AFCCCA on a Hills issue. 2020: TJAG sends back for rehearing; but that was "impractable" so CA approves six years, BCD, TF, RiR. 2021: AFCCA sends back down for post-trial errors. 2022: Back to AFCCA which affirms four years, BCD, TF, RiR. |
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