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An impressive lineup of SCOTUS litigators.
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Appellant Nix was convicted MJA of an assault and battery on his ex-wife, for which the MJ sentenced him to 135 days, RiR, a BCD, and a reprimand. Appellant raises one assignment of error with six underlying allegations that trial defense counsel was constitutionally ineffective during his representation of Appellant by failing to: (1) object to improper findings testimony; (2) call a defense expert witness; (3) object to admission of incomplete personnel records; (4) object to an improper victim impact statement; and (5) investigate favorable defense witnesses. In addition, Appellant claims (6) trial defense counsel’s “misplaced concern for the named victim amounted to an actual conflict of interest which adversely impacted his representation” of Appellant by withdrawal of a valid objection during sentencing. Initially the IAC claims items (1) - (5) was a Grosty. The court ordered DC declarations. Upon receipt of the declaration, appellant's counsel added item (6) and also moved the issues from the Grosty table to a merits issue. (Note. This is another case where sometimes a Grosty issue gets the court's attention and sometimes, although not here, gets relief.)
1. Improper findings testimony. A witness testified about lingering pain and about the appellant's "personal morals." There was no objection. However, the MJ sua sponte said he'd only consider the testimony for the limited purpose of "why the witness remembers the conversation." Even if error, no prejudice on these facts. 2. Not calling an expert. Update. A commenter has provided the following for consideration. In Richards, Judge Hardy, writing for the Court, does two main things: reiterate the need for the government to prove every single element of an offense, and provide a framework which practitioners can use to determine if something is prejudicial to good order and discipline. United States v. Richard, __M.J.__, No. 22-0091/AF, 2002 CAAF LEXIS __ (C.A.A.F. Sept. 7, 2022). Some years ago, Air Force Colonel Jeremy Weber turned a masters thesis into a law review article about good order and discipline. Jeremy S. Weber, Whatever Happened to Military Good Order and Discipline. 66 CLEVE. ST. L. REV. 123 (2017). If Washington and de Saxe are correct that discipline forms the soul of a military, then the United States military seems to be experiencing a spiritual crisis. Increasingly, the public perceives the military term of art “good order and discipline” not as representing a core principle of military effectiveness, but as rhetorical “chaff” military leaders use to voice their opposition to proposed reforms without actually communicating anything. In recent years, military leaders have employed the term to voice their opposition to a number of proposed personnel, social, and legal military reforms, and they have done so without clearly explaining what good order and discipline is or why it requires a certain position on these policies. In most cases, the military ultimately enacted those reforms without any measurable negative effect on good order and discipline. As a result, the linguistic impact of the term has come under fire from Congressional leaders and the media. This battle over the meaning and weight of the good order and discipline rationale has played out most recently in calls for military justice reform. His statistical research shows that the term is often stated or used but that it defies definition. He explores the root of the term going back to the Seventeenth and Eighteenth centuries. As one of his purposes for examining the current state of UCMJ art. 134 prosecutions he says that, This Article then ties the developments regarding Article 134 to a larger issue: the military’s difficulty in defining what good order and discipline means. To address this situation, this Article proffers a comprehensive definition of the term that military leaders can use to specifically ground their positions and proffers that the military justice system can better specify what conduct is and is not prohibited under Article 134. In developing that theme he reviews military and Supreme Court decisions challenging prosecutions under Article 134 and concludes, However, persisting issues continue to raise the question of whether the contours of the “good order and discipline” term are really understood, or, as the dissent [in Parker v. Levy] held (sic), whether the military has changed to the extent that good order and discipline now represents a nebulous concept. He gets us to one "limitation" in the Manual for Courts-Martial under Article 134(1) that the conduct have a "reasonable and palpable effect" on good order and discipline--a limitation perhaps ignored in trials. He recognizes this still does not define what actions can be prejudicial in many cases rather it's an attempt to give weight to the severity of the conduct. The article is a good read, especially as Judge Maggs has given it a bit of currency--he cites Weber's article in his (and Judge Stucky's) concurring opinion in United States v. Richard, __ M.J. ___, No. 22-0091/AF, 2022 CAAF LEXIS __ (C.A.A.F. Sept. 7, 2022). Is there a volunteer to do a case review for us (anonymous even)? We don't want to write more ourselves because we are in the middle of a brief on this very issue.
Submit a draft to [email protected]. Update. A commenter notes. There is another, albeit more subtle, takeaway from Miner. It is a dual blast arising in Gideon and Strickland, to the defense leadership of all of the Services Defense Counsel functions. With actual trials in courts-martial going the way of the dodo bird, experienced counsel (with supervisory responsibilities) have likewise significantly declined. In Miner, the court finds IAC and in the process names one of the DC (the more experienced one). Appellant was represented by two captains assigned to Trial Defense Service (TDS) at Fort Polk, Louisiana. The Senior Defense Counsel, Captain (CPT) Delta, detailed himself to the case but subsequently detailed a subordinate junior defense counsel as appellant's first chair attorney. This was the first trial the subordinate defense counsel had served as a first chair attorney and only the second trial in which the subordinate attorney had any responsibilities. Leading up to the trial, the attorneys worked as a team, although CPT Delta took a greater role in preparing for the pre-sentencing proceedings, while the subordinate defense counsel focused on the merits phase of appellant's court-martial, under CPT Delta's Having laid out the law of IAC, ACCA gets to the nub of the issue which, as we know, often comes down to prejudice. The hard question before this Court is not whether appellant's counsel were ineffective in several areas (they were); but rather to assess the level to which their failures prejudiced their client. In order to analyze what, if any, prejudice occurred in this case, we will first discuss the three witnesses the defense presented and we will next turn to the possible exculpatory defense witnesses that were not presented as contrasted against the government evidence. Query: is the court implying the Government or investigators knew but there is an underlying Brady-Plus issue? Anyway, It appears the defense (and I suppose investigators) never interviewed Appellant's next door neighbor and the one across the hall. At the Dubay Specialist DW described the layout and acoustics of the rooms, stating he could generally hear "everything" in appellant's space, to include appellant brushing his teeth and cooking meals. Specialist DW was present in his room on the night of the alleged assault and was awake until approximately 0400 because he suffered from untreated insomnia. While there are lessons here for DCs, I think too TCs can learn something. This comes from two questions: why did CID not interview the neighbors or why did not the TC arrange for CID to interview them? It seems obvious that the neighbors should have been interviewed. That seems a relevant investigative step--looking for witnesses who may have seen or heard something. True, canvassing interviews do not always produce useful information, but as the Dubay hearing here showed and as ACCA discusses, the neighbors did have relevant testimony. As a trial counsel I would want to know that.
Over the transom today,
Michelle Grisé, Meghan Ballard, Kirsten M. Keller, Julia Vidal Verástegui, Justice Must Go On: The Effects of the COVID-19 Pandemic on Military Court Operations. Perspective, RAND Corporation, September 2022. Baker is remanded because "the convening authority violated Appellant’s basic due process rights when she decided to take no action on sentence before allowing Appellant five days to respond to the victim’s post-trial submission of matters in accordance with Rule for CourtsMartial (R.C.M.) 1106(d)(3)"
Appellant pled guilty to three sexual abuses of a child and of receiving and viewing CP; for which he was sentenced to 15 months, RiR, and a DD. That leaves two issues on table when the case comes back one of which asks "whether trial counsel’s sentencing argument improperly referenced victim impact and criticized Appellant’s apology when no victim impact evidence had been admitted." Note to DC. "Appellant did not file a motion with the military judge alleging convening authority error, as permitted under R.C.M. 1104(b)(2)." In remanding, the court notes that "In this case, “some colorable showing of possible prejudice” is demonstrated because the R.C.M. 1106A submission contained new information, Appellant has articulated how he would have responded to the victim’s submission had he been given the required opportunity, that his response would have been different from his initial clemency submission, and the convening authority could have granted some clemency relief." ![]() The Express (UK) tells us that the RAF chief [is] told to fix ‘rigged’ Court Martial system after ‘incredibly serious’ allegations. RAF chief Sir Mike Wigston has been told he must fix its "rigged" court martial system - with a legal expert claiming incidences of incident (sic) exposure, assault, intimidation and even rape were frequently going unpunished. Cross-posted with GMJR. Hernandez is ACCA' s refresher on challenges to a member, especially when it involves implied bias. He gets a new trial because the MJ declined to excuse a panel member who “expressed a strongly held belief that consent to sexual intercourse required verbal consent.” (The member's wife was a SARC which was part of the basis for challenge.) Two prospective members held the same opinion, but one was peremptorily challenged by the defense. (Keep in mind that a peremptory challenge waives the issue, and failure to peremptorily challenge, if there is only one member affected, waives the issue.) Sergeant First Class@expressed a strongly held belief that consent to sexual intercourse must be expressed verbally. When asked by the defense counsel, "[d]o you think consent to sexual intercourse has to be verbal?" SFC responded, "[y]es." Defense counsel then quoted the definition of consent that the military judge would later use in instructions. and then asked: "[s]o if you saw the words 'consent is a freely given agreement,'you would think that agreement has to be a verbal agreement?" SFC responded with: "(i]t has to be verbal without intoxication." In denying the challenge the MJ mentioned the liberal grant mandate but found the standard for either an actual or implied bias was not met.
The ACCA focuses on the implied bias issue and notes that In Sigrah, the court explains R.C.M. 914 and the "Jencks Act. We reiterate today that the Kohlbek framework is the appropriate prejudice analysis for preserved nonconstitutional R.C.M. 914 error. R.C.M. 914 requires the government to make available to the defense, after a witness has testified, any statement possessed by the United States that the witness has made. In its opinion, the lower court agreed that the military judge erred in her application of R.C.M. 914. However, the lower court determined that the error did not substantially influence the findings.
On September 1, DoD issued a press release announcing the new numbers for 2021. Today, the Department of Defense (DOD) released the Fiscal Year 2021 Annual Report on Sexual Assault in the Military. At the same time, DoD has released this CHART/slide show.
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