At NIMJ we found someone to give us a picture of military justice over the years. Note, the source for the total strength numbers is David Coleman, U.S. Military Personnel 1954-2014, and is used for a quick WAG comparison, or there is USA Facts. NIMJAll credit goes to NIMJ Extern Jake Dianno. CAAF has granted the petition in United States v. Brown, on a question that asks
ARE APPELLANT'S CONVICTIONS UNDER ARTICLE 91 LEGALLY INSUFFICENT WHERE THERE IS AN ABSENCE OF EVIDENCE THAT THE CHARGED CONDUCT OCCURRED IN THE SIGHT, HEARING, OR PRESENCE OF THE ALLEGED VICTIMS WHILE THEY WERE IN THE EXECUTION OF THEIR OFFICE? The CGCCA published opinion is here. "We hold that sending a disrespectful text message directly to the victim is actionable under Article 91, UCMJ." Some of us have argued, unsuccessfully, that a military judge should allow the defense at least three peremptory challenges of prospective panel members. The argument is based on the idea that the convening authority (the prosecution) has unlimited peremptory challenges because of the members selection process. Alternatively, why should the trial counsel have any peremptory challenge if the convening authority has already said the members are good to go? Some have suggested the liberal grant mandate is a way to accommodate the imbalance. But to get an implied bias challenge you must still present some reasons for granting the challenge.
Today we came across Peter G. Berris, CONG. RSCH. SERV. R47259, Batson v. Kentucky and Federal Peremptory Challenge Law, for a Sunday read. In United States v. Covitz, the Appellant gets a new trial because the military judge abused his discretion in "by denying challenges for cause against multiple panel members." "Appellant’s convictions arose from allegations he assaulted his former girlfriend." Beginning with 14 prospective members, agreement and challenges whittled that down to ten. But the defense had four more challenges (one of which was later resolved with a peremptory challenge)--all initially denied. AFCCA agrees that one denial was proper, so we are down to three. 1. Implied bias challenge based on "based on his knowledge of both Appellant and Maj RW, whom trial defense characterized as “a central witness[.]” ” Trial defense counsel pointed to Maj MP’s “very high opinion” of Maj RW and told the military judge that Maj RW was “very financially well off” based upon some profitable investments he had made. The relevance of Maj RW’s financial status, according to trial defense counsel, was that Maj MP essentially said he “goes to [Maj RW] for financial advice. . . . It’s where [Maj MP] is literally going to somebody who has had a significant amount of success financially and both [sic] in his career and asked him for advice.” Trial defense counsel argued that Maj MP was relying on Maj RW’s advice on “potentially major life and financial decisions.” Trial defense counsel pointed to the length of the conversations and the fact that Maj MP and Maj RW had a long conversation just days before the court-martial, as well as the fact that Maj RW was an adverse witness to Appellant—in no small part because Maj RW was in a relationship with Ms. CC, Appellant’s former girlfriend and victim in the case. The Defense also noted Maj RW’s affiliation with the potential defense witness, Capt SS. The Government opposed because "that because Maj MP knows Appellant, a Government witness (Maj RW), and a Defense witness (Capt SS), that outside observers “would see that as potentially balancing out in a way.” When denying the challenge the MJ said he had considered the liberal grant mandate and that he did “not find it to be a particularly close call based upon [witness/member] limited interaction. 2. The member had apparently rented a home from the Appellant (where the alleged offenses happened) and he had a sister-victim. A question came up about the members knowledge of the house layout and some "sound barrier" problems which migh tbe relevant in testimony. The MJ responded similarly to #1. 3. Same result as #1, 2, based on [A]pproximately eight months before Appellant’s court-martial, she started volunteering at a local shelter for women who were victims of domestic violence. Maj JR’s role was to lead hour-long yoga classes once or twice a month. The shelter prohibited volunteers from talking to the shelter residents about the abuse they suffered and from interacting with the women at all outside the shelter. [S]he went through a four-hour volunteer orientation at the shelter before she started leading the yoga classes, but there was no discussion of domestic violence itself during the orientation. The Defense challenged Maj JR under an implied bias theory based upon her volunteering at the shelter. Trial defense counsel said the Defense might call an expert witness to testify about “biases within the system when they know the victim of domestic violence,” which might conflict with Maj JR’s experience at the shelter. The Government perempted a different member and the defense perempted #3 above.
Thus, there were eight members and quorum. The AFCCA concludes that the MJ erred as to #1 and #2 above. There is a good analysis of the implied bias and liberal grant mandate. It seems the AFCCA takes the position that the decision was a close call on the facts and the liberal grant mandate should have resulted in a granted challenge. A new item in the AF JAG Reporter is worthy of a read. Captain Rocco J. Carbone, III and Captain Christina L. Heath, A Review of 2022 Court of Appeals for the Armed Forces Updates to Military Rule of Evidence 513. September 27, 2022 at 1. A "headline" suggests that "C.A.A.F.’s opinions and actions this term helped to demarcate some of the boundaries to Mil. R. Evid. 513, yet the likelihood of litigation remains high." Mellette has proved useful, on a trial motion to reconsider denial of access, but not useful because the response was that "records older than 10 years are not retained" (or words to that effect). We are particularly interested in their language Regarding the “inappropriateness to allow [the] privilege,” courts have held that the privilege should not act as both a “sword” and a “shield.” In other words, the privilege holder may not use it to disclose evidence “to establish advantageous facts and then invoke the privilege to deny the evaluation of their context, relevance, or truth—thus turning the privilege from a shield into a sword—a circumstance the waiver rule’s broader language seeks to avoid.” Regarding appropriateness, practitioners should consider the perceived intent behind the communication when it was made and for what purpose The question implicates the common cherry-picking that goes on with reports of offenses whether it be about psych records or the, very common, cherry-picking of texts on a smartphone. It seems that cherry-picking during the course of an investigation fits within the idea of establishing "advantageous facts" with the intent to advance a prosecution.
An off the wall question is whether the Rule also applies to patient-therapist records of an accused. The Rule does not contain a general exception for records of the accused. There is a specific exception when the accused has first offered statements concerning a mental condition. See R.C.M. 513(d)(7). Why should there not be a similar rule for a witness who first offers evidence of a mental condition? Is there an 'they opened the door argument?' We have a couple of questions that relates to a not uncommon event. Scenario 1. A court-martial accused and "victim" are in civilian court on a divorce and child custody matter. Under the state rules of discovery there can be required depositions and medical and mental health records disclosure. These records, after all, may be relevant to who is the best parent to have full or joint custody of a child or whether a divorce should be granted 'for cause.' There is due process attendent to the nature and extent of the discovery. And the records may now be part of the court records for the case (e.g., in testimony). Scenario 2. An alleged victim goes to civilian court for a Protective Order. The person "accused" has the due process right to a hearing. At the hearing, the "accuser" has the opportunity to make a presentation, and assume she does. See, e.g., Fairfac County, VA, Local Rules. (Caution. Every states rules may differ.) The accused (or his divorce/child custody lawyer) provides a copy of any documents to the court-martial defense counsel. (Assume the DC was not present at a PO hearing.) What use, if any, can be made of these records in a court-martial? As the Bonhomme Richard trial is underway, ProPublica has filed a lawsuit regarding the denial of access to ongoing filings in the Mays case. ProPublica v. Butler, et. al. Update. August 19, 2022, NIMJ letter to DoD General Counsel regarding the lack of transparency in court-martial proceedings. Reporters Committee for Freedom of the Press to Hon. Caroline D. Kress, "Request for access to court records in United States v. Mays and corrected guidance interpreting Article 140a, UCMJ."
Commentary on United States v. Tate. As his sentence did not include death, a punitive discharge, or confinement for two or more years, the accused was not entitled to automatic review of his convictions by the Army Court of Criminal Appeals (ACCA). See Article 66(b)(3), UCMJ. A reserve attorney assigned to the Army Trial Judiciary completed the Article 65 review, “found no irregularities with appellant’s court-martial and provided appellant with no relief.” United States v. Tate, ARMY 20200590 at 3 (A. Ct. Crim. App. Sep. 9, 2022). Thereafter, Appellant timely applied for relief under Article 69(a), UCMJ, which provides: “Upon application by the accused and subject to subsections (b), (c), and (d), the Judge Advocate General may modify or set aside, in whole or in part, the findings and sentence in a court-martial that is not reviewed under section 866 of this title (article 66).” (Emphasis added) The Judge Advocate General (TJAG) delegated his Article 69 authority to deny relief “to attorneys assigned to OTJAG-CLD but withheld authority to grant relief to his personal level.” Tate, at 4. An attorney in OTJAG-CLD reviewed Appellant’s case and denied relief. Appellant sought relief at ACCA, alleging multiple errors, including that the evidence was legally insufficient to support convictions as to two charges. ACCA granted that issue and specified an additional issue: whether it had jurisdiction to review the case when the Judge Advocate General of the Army had “not taken an action outlined in Article 69(c).” Tate, Order (Feb. 10, 2022). Although Appellant’s brief will not download from ACCA’s website, it is clear from the Government’s brief of March 15, 2022, the parties misunderstood the concern that resulted in ACCA specifying the issue. The Government argued that, regardless of the denial of Article 69(a) relief, as ACCA’s jurisdiction was not dependent on the outcome of the Article 69 review, the court had jurisdiction to consider Appellant’s appeal. It cited and appended two opinions—one Navy, one Air Force—in which the relevant CCA had considered an appellant’s case, although the relevant TJAG had personally denied relief under Article 69(c), UCMJ. ACCA issued a notice of a hearing in the case to be held on July 26, 2022. Tate, Notice of Hearing (June 6, 2022). Apparently recognizing that the parties misunderstood the specified issue, ACCA issued an amended notice of hearing in which it ordered the parties to “be prepared to address the following question: The 18 November 2021 ‘Action’ is signed by Lieutenant Colonel JR for The Judge Advocate General (TJAG). What is the legal authority for TJAG to delegate the authority to take action as outlined in Article 69(c), UCMJ, to another judge advocate?” Tate, Amended Notice of Hearing (July 21, 2022). After the hearing, ACCA determined that, unlike Article 65, Article 69(c) did not allow TJAGs to delegate the authority to grant or deny relief. As the Army TJAG had not personally acted in Appellant’s case, as required by Article 69(c), ACCA held it was without jurisdiction to hear the appeal. We expect that ACCA’s decision in this case will be sufficient to induce the Army TJAG to change policy and personally decide whether relief is appropriate in applications for relief under Article 69, UCMJ. If not, an applicant could apply to the CCA for a writ of mandamus, asking it to order the JAG to take action on the case as required by Article 69(c), UCMJ. Although writs have had a troubled history in the military, recently military appellate courts have looked upon them more favorably. The All Writs Act grants the power to “all courts established by Act of Congress [to] issue all writs necessary or appropriate in aid of their respective jurisdiction and agreeable to the usages and principles of law.’’ 28 U.S.C. § 1651(a). The CCAs are such courts. Clinton v. Goldsmith, 526 U.S. 529, 534–35 (1999). The “All Writs Act requires two determinations: (1) whether the requested writ is ‘‘in aid of’’ the court’s jurisdiction; and (2) whether the requested writ is ‘‘necessary or appropriate.’’ United States v. Brown, 81 M.J. 1, 3 (C.A.A.F. 2021) (citation omitted). Whether the requested writ is “in aid of” a court’s jurisdiction is determined by the scope of the court’s jurisdiction and whether the requested writ implicates the court’s subject matter jurisdiction over the case. Id. The CCAs are courts of limited jurisdiction—limited to the powers specifically granted them by statute. The authority to grant writs is not limited to cases in which jurisdiction has already been acquired. “Potential jurisdiction exists as long as some pathway to the lower court’s statutory jurisdiction remains.’’ Id. at 5. Once TJAG acts, whether to deny or grant some relief, the CCA has statutory jurisdiction under Article 66(b)(1)(D) to grant discretionary review of an appellant’s case. To show that a writ of mandamus is necessary or appropriate, Appellant must establish three things: “(1) there is no other adequate means to attain relief; (2) the right to issuance of the writ is clear and indisputable; and (3) the issuance of the writ is appropriate under the circumstances.” Hasan v. Gross, 71 M.J. 416, 418 (C.A.A.F. 2012). In cases such as Appellant’s, in which the Government did not file an Article 62 appeal and the approved sentence to confinement did not exceed six months, the only avenue for an appellant to obtain review by a CCA is through TJAG: by referral from TJAG or by the TJAG acting on an Article 69(a) application. Article 66(b)(1). As ACCA in Tate correctly held, without TJAG personally acting, as required by Article 69, ACCA is without jurisdiction to hear the appeal. Therefore, without the issuance of a writ of mandamus, there is no other adequate means to attain relief. The right to the issuance of the writ in such cases is is clear and indisputable: TJAG failed to take action personally on Appellant’s case as required by Article 69, UCMJ. Finally, under all the circumstances, issuance of the writ would be appropriate in such cases. NIMJA military judge, sitting as a general court-martial, convicted Appellant, contrary to his pleas, of providing alcohol to minors on divers occasions; wrongfully distributing marijuana on divers occasions; wrongfully distributing psilocybin (mushrooms) on divers occasions; wrongfully using mushrooms on divers occasions; sexually assaulting a child, GB; behaving in a disgraceful and dishonorable manner that seriously compromised his standing as an officer by wrongfully and dishonorably organizing individuals into a violent gang; wrongfully communicating a threat to AL on divers occasions; wrongfully communicating to MH a threat to injure ME by paying someone to assault ME; receiving consideration for arranging for KW, PW, WK, and other unnamed persons to engage in sexual intercourse with others; unlawfully entering ML's house; sexually assaulting a child, FT; wrongfully threatening to hurt, injure, or kill Captain (Capt) CM; wrongfully threatening to hurt, injure, or kill Special Agent (SA) JG; and wrongfully threatening to hurt, injure, or kill Airman Basic (AB) JS, in violation of Articles 92, 112a, 120b, 133, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 912a, 920b, 933, 934.3 The military judge sentenced Appellant to a dismissal, confinement for 25 years, and forfeiture of all pay and allowances. The military judge credited Appellant with 60 days of pretrial confinement credit. The convening authority approved the adjudged sentence. United States v. Brown, No. ACM 38864, 2017 CCA LEXIS 454, at *1-3 (A.F. Ct. Crim. App. July 6, 2017).
CAAF ultimately denied his petition for review. 78 M.J. 162 (C.A.A.F. 2018). There being no avenue to the Supreme Court. Unlike every other system in the U.S., an intermediate court, the CAAF, acts as a gatekeeper. So off to federal district court went Brown with a habeas petition. He did not fair well in the Ninth. See Brown v. United States, No. 21-55727 (9th Cir. Sept. 20, 2022) (unpub.). |
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