The International Criminal Court appeals chamber in The Hague today released their opinion affirming Ugandan Lord's Resistance Army Dominic Ongwen's conviction and 25-year sentence for war crimes and crimes against humanity. The ICC's opinion extensively cites to and discusses NIMJ's amicus brief. Jim Young, Phil Cave, Frank Rosenblatt, and former NIMJ rapporteur (now an Army JA) Emily Eslinger wrote the brief. The brief focused on lack of mental responsibility (duress as a defense) and cumulative convictions (multiplicity). Earlier this year Phil Cave and Frank Rosenblatt travelled to The Hague to give the oral presentation on behalf of NIMJ.
The ICC's (over 600 page) opinion: https://lnkd.in/gUst94sU
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No. 23-0027/AF. U.S. v. James T. Cunningham. CCA 40093. 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 issues:
I. 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. II. WHETHER TRIAL COUNSEL'S SENTENCING ARGUMENT WAS IMPROPER UNDER UNITED STATES v. WARREN, 13 M.J. 278 (C.M.A. 1982) AND UNITED STATES v. NORWOOD, 81 M.J. 12 (C.A.A.F. 2021), RESPECTIVELY, 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. III. WHETHER APPELLANT WAS DEPRIVED OF THE RIGHT TO A UNANIMOUS VERDICT UNDER RAMOS v. LOUISIANA, 140 S.CT. 1390 (2020), AFTER THE MILITARY JUDGE DENIED HIS MOTION FOR UNANIMITY, DENIED HIS REQUEST TO POLL THE PANEL ON WHETHER ITS VERDICT WAS UNANIMOUS, AND THE AIR FORCE COURT DISMISSED THE ISSUE WITH NO DISCUSSION. United States v. Jordan Jones is a published decision where Officer and enlisted members sitting as a general court-martial convicted Appellant, contrary to his pleas, of sexual assault in violation of Article 120, Uniform Code of Military Justice [UCMJ]. Appellant was also convicted, pursuant to his pleas, of desertion, absence without leave, escape from custody, false official statement, wrongful possession of a controlled substance, and wrongful appropriation in violation of Articles 85, 86, 87a, 107, 112a, and 121 UCMJ, respectively. Appellant asserts three assignments of error [AOE]: (1) the admission of his statement, “I’m going to tap that” implicated Appellant’s substantial right to be presumed innocent under the Due Process Clause of the Fifth Amendment, and but for that error, the outcome of the proceeding would have been different[.] A first point to consider is whether to give, and what must be included in a notice under Mil. R. Evid. 404(b). Prior to trial the Government provided notice under Mil. R. Evid. 404(b) that it intended to offer certain non-hearsay statements of Appellant. Among this evidence was a statement Appellant made earlier in the evening to Machinist’s Mate Third Class [MM3] Charlie (one of the other Sailors present at the hotel), in which Appellant stated that “he was going to have sex ‘regardless’ that night, or that he was ‘going to get some tonight,’ or words to that effect.”8 The Government made clear in its notice that it was not conceding that the statements were covered by 404(b) however, “out of an abundance of caution” it was providing notice.9 The Government’s notice did not specifically contain Appellant’s alleged statements including the words “tap that,” “hit that,” or words that conveyed the same meaning. Appellant subsequently filed a motion to exclude evidence listed in the Government’s motion; however, Appellant’s motion was limited to other unrelated evidence in the Government’s notice pertaining to an alleged violation of a protective order. The Government ultimately elected not to introduce that evidence. Appellant’s motion to exclude did not include Appellant’s alleged statements “he was going to have sex ‘regardless’ that night” or, that he was “going to get some tonight.” #2 for this season is United States v. Day. The sole assigned issue in this appeal is “[w]hether attempted conspiracy . . . is a viable offense under the UCMJ.” Consistent with our holding in United States v. Riddle, 44 M.J. 282, 285 (C.A.A.F. 1996), we answer this question in the affirmative. We therefore affirm the judgment of the United States Air Force Court of Criminal Appeals (AFCCA). This was a guilty plea case with what appears to be standard language to waive all waivable motions. In short, Appellant informed JM that she wanted to kill her husband to obtain the benefits of a life insurance policy. Appellant and JM agreed to meet in a Walmart parking lot so that JM could supply Appellant with a substance for poisoning her husband. When they met, Appellant paid JM $100, and JM provided Appellant with a clear plastic bag containing a white substance that JM said was fentanyl. Appellant did not know that JM was working as an informant for Air Force investigators and that the substance JM provided was not actually fentanyl. So the first question for Judge Maggs, writing for the court (including Sr. Judge Effron) was whether the issue presented was waived as a result of the unconditional guilty plea.
At trial the MJ went through the usual colloquy with counsel about what potential issues would be waived. At no time, they were asked four times, did the defense raise a failure to state an offense as a potentially waived issue. The unconditional guilty plea continued through sentencing. To be “clearly erroneous” a finding of fact “must be more than just maybe or probably wrong; it must strike us with the force of a five-week-old unrefrigerated dead fish.” United States v. Rivera, __ M.J. ___ (N-M. Ct. Crim. App. 2022) citing United States v. Cooper, 80 M.J. 664, 672 n.41 (N-M. Ct. Crim. App. 2020).
To quote brother Pat McLain, that is all. United States v. Edwards, presents an interesting resolution of a sentence reassessment. After this court affirmed the findings and sentence, United States v. Edwards, No. ACM 39696, 2021 CCA LEXIS 106 (A.F. Ct. Crim. App. 10 Mar. 2021) (unpub. op), the United States Court of Appeals for the Armed Forces (CAAF) granted Appellant’s petition for review of the following issue: You may recollect our postings and what you have read about the Pro Publica litigation over access to court filings in Mays. We have mentioned that the U.K. has laws about what can and cannot be published in the media about a case and about name-suppression of the accused. Well, it appears the Irish have some similar as this news article reports. Connor Gallagher, Military judge hears arguments over media's right to report on court martial. Irish Times, December 8, 2022. ("The matter relates to the case of an officer convicted of sexually assaulting a female soldier.") The matter was raised during legal argument at a General Court Martial hearing held in McKee Barracks on Thursday. At issue was the right of the media to have a right of audience before a court martial and to challenge the imposition of reporting restrictions on proceedings. In re AL is a discovery case based on a complaining witness's Writ Petition. The defense discovery request asked for “[a]ny relevant personnel, medical, and mental health records of any complaining witness . . . to include records in the possession of the Family Advocacy Program (FAP) . . . .” Trial Counsel got "575 pages of medical records, including 42 pages of FAP records." Trial Counsel thought some information was relevant. After litigation, and over the SVC's objection the military judge ordered production to the defense without redaction or reviewing in camera. Essentially,
"As noted above, the military judge’s order did not address Mil. R. Evid. 513 at all. Therefore, we cannot be certain how the military judge analyzed the application of the rule." An interesting new grant.
No. 22-0284/AR. U.S. v. Brian C. Docilet. CCA 20200358. 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 hereby granted on the following issue: WHETHER THE MILITARY JUDGE ERRED IN DENYING DEFENSE'S REQUEST TO POLL THE PANEL TO VERIFY A UNANIMOUS VERDICT. No briefs will be filed under Rule 25. |
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
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