On April 28, 2022, the Government fired its opening salvo in its UCMJ art. 62 appeal of the military judge's ruling. NMCCA Rule 20(c)(B) requires a defense response within 20 days. First a refresher on the ruling and then the filing.
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United States v. Nelson. The introduction. We granted review to determine whether the military judge erred when he concluded that Appellant voluntarily provided his cell phone’s passcode to law enforcement. We hold that under the totality of the circumstances, Appellant did voluntarily provide his passcode and thus the military judge did not abuse his discretion in denying a defense motion to suppress incriminating evidence derived from Appellant’s cell phone. We therefore affirm the judgment of the United States Navy-Marine Corps Court of Criminal Appeals (CCA). The issue. We granted review on the following issue: Did the military judge and the court below err in finding that Appellant voluntarily provided his smart phone passcode to law enforcement when the law enforcement official conducting the interrogation asserted that he possessed a search authorization for the phone and Appellant only provided his passcode because Appellant believed he had “no choice?” In denying relief, the court addressed a number of factors in a de novo review of the totality of the circumstances and the military judge's findings. See Slip op. at 4; and
Appellant makes two main arguments. First, Appellant avers that his entry of the passcode was involuntary because he merely acquiesced to a claim of authority. However, we note that the Fourth Amendment consent cases that Appellant cites in support of his claim are not on point. . . . Appellant next argues that his refusal to consent to a search of his phone five times “is direct evidence that he did not voluntarily provide his phone’s passcode.” However, we are not persuaded that, standing alone, five refusals to consent to a search make a subsequent entry and provision of a passcode involuntary. Key to our analysis here is the military judge’s factual findings that the investigator used a professional tone at all times and did not engage in threats, abuse, or coercion. I just received a response to a FOIA request I submitted about a year ago: "All Article 138 Complaints by prisoner at USDB Fort Leavenworth from November 01, 2010 to November 01, 2020." Below is the 300+ page response, which I post for the benefit of researchers interested in the legal claims being submitted in military prisons. ![]()
Brenner FissellEditor NIMJ’s Laura Dickinson, Still at War: The Forever War Legal Paradigm in Afghanistan. Just Security, April 14, 2022. The U.S. legal posture towards Afghanistan, therefore, holds ongoing significance. Specifically, we need to ask the question: Does the United States still consider itself to be waging a forever war against terrorist groups in Afghanistan? Selection of a jury of three- and possibly four-star generals starts Monday at Wright-Patterson Air Force Base in the court-martial of a former Air Force Research Laboratory commander accused of kissing and touching a woman without her consent. The Editors--- like you should, presume that he is not guilty of the alleged offenses. In United States v. Edwards, __ M.J. ___ (C.A.A.F. Apr. 14, 2022), the court sets aside the sentence. All five judges found trial counsel error, but Chief Judge Ohlson and Judge Sparks would find no prejudice and affirm the findings and sentence. R.C.M. 1001A
These artistic elements were incorporated into the video for the purpose of delivering a non-written and nonoral message to the panel, but to whom should we attribute that message? We believe the answer to that question must be to Government trial counsel. In producing the video, trial counsel made creative and organizational decisions that lead us to believe that the video incorporated her own personal artistic expression. This would not be the first time for something like this. Usually the MJ shuts down the music and any voice-over to the slide show.
In our 2021--Year In Review in the CAAF Rules Guide, we (Fidell, Fulton, Sullivan, and myself) wrote: "In Proctor an O-5 commander, knowing of a pending case of NCO misconduct, gave a speech urging subordinates not to 'enable' bad actors, and used as an example his past refusal to write a character letter for a subordinate facing an NJP.... CAAF agreed with the accused that there was 'some evidence' of UCI, but that the public perception of unfairness was not sufficiently egregious to warrant relief.... Proctor illustrates CAAF at its most disappointing: an institution set up primarily for the purpose of reducing command influence has created a byzantine, multi-step test for these claims (each step another opportunity to lose), but appears to lack the institutional will to apply it." Proctor followed the Bergdahl decision of the prior year, about which I wrote: "CAAF descended into a burden-shifting maze, cloaking a judgment-call in technocratic language. And even when one descends into the maze with the court, one must conclude that it took wrong turns." This year, it appears likely that CAAF will be able to review the UCI claim in Gilmet, where a senior Marine JAG leader strongly implied to a group of defense counsel that zealous advocacy will harm their career prospects. A friend writes, "Can any Marine or Marine's mother expect a fair trial on publicly available facts?" Gilmet is CAAF's moment of truth. If it continues to react as an ostrich to blatant unlawful command influence, it will be consigning itself to irrelevance and betraying the purposes of of its founders--purposes which are as important today as they were when the court was created. Brenner FissellEditor Meghhan Myers, reports in Military Times, Pentagon unveils new sexual assault response plan - with a deadline of up to 8 years, that "The Defense Department is rolling out an eight-year plan implement dozens of recommendations from its Independent Review Commission on sexual assault, chief among them standing up an independent organization to prosecute sexual assaults, harassments and related crimes, taking them outside the chain of command."
She also reports, Budget hang-ups slow sexual assault prevention reforms. Foster v. Warden, was decided by the Fifth Circuit on April 12, 2022. This appeal presents a question of mootness. A former military prisoner, while serving a term of supervised release, violated a condition of his supervision. After being arrested and while being detained, he brought the current lawsuit and claimed that the condition was unconstitutional. He has been released, and his term of supervision has ended. He continues this suit in part because he has been denied all veterans’ benefits due to the violation of a condition of supervision. Our issue is whether the denial of benefits is a collateral consequence sufficient to avoid finding his claim to be moot now that he has completed his term of supervision. We conclude that it may be, but there was no development of that issue in district court. We therefore VACATE and REMAND to the district court for further proceedings. Having served nine years of a 15-year sentence to confinement, Foster was paroled. As part of his parole he was required to complete a sex-offender group program. (Success requires admitting the offense.) Allegedly being noncompliant with the program, Foster's parole was revoked and he was arrested and imprisoned. He filed suit alleging that the parole condition was unconstitutional, partly because of the Fifth Amendment claim. His case was dismissed in district court because by then he had been released from confinement. However, Foster maintained the case was not moot because of continuing collateral consequences. Foster insists that the condition itself was unconstitutional because successfully completing the group treatment sessions required an admission of guilt. Foster claims that this violated his Fifth Amendment right against self-incrimination, and he refused to admit guilt so that he could pursue a writ of coram nobis to establish his innocence. Citing to Lorance, the court remands the case to the district court to fully explore, make a record, and get Government input. The court notes there may be a valid claim that the collateral effects undercut a mootness claim. The Tenth Circuit held that the pardon did not constitute a legal admission of guilt and that Lorance “sufficiently allege[d] ongoing collateral consequences from his conviction . . . rendering [the case] not moot." United States v. Foster: Petition den. at CAAF on Feb. 22, 2010. I'm not seeing a CCA report online.
Recent polling data from YouGov indicates low levels of trust in DoD's reporting of civilian casualties caused by US military abroad. Only 25% responded that this reporting was trustworthy or very trustworthy. ![]()
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