The Military Justice Review Panel ("MJRP" or "the Panel"), will hold an open meeting on Tuesday, January 16, 2024, from 9:45 a.m. to 2:00 p.m. and January 17, 2024, from 10:15 a.m. to 2:45 p.m. General Gordon R. Sullivan Conference & Event Center, 2425 Wilson Boulevard, 4th Floor Arlington, Virginia 22202. Zoom https://www.zoomgov.com/j/1615350618?pwd=NFowUHFKSVQvOUprZUFaOVd6RmxJZz09 Meeting ID: 161 535 0618 Passcode: 654321 The MJRP welcomes written input from the public on these topics or other issues under its consideration. Written comments must be received by the MJRP at least five (5) business days prior to the meeting date. Written comments should be submitted via e-mail to the MJRP at [email protected]. Please note that all written comments will be treated as public documents and will be made available for public inspection. Harvey--case to watchOrder Granting Petition for Review: No. 23-0239/NA. U.S. v. Harvey. DID THE LOWER COURT ERRONEOUSLY INTERPRET AND APPLY THE AMENDED FACTUAL SUFFICIENCY STANDARD UNDER ARTICLE 66(d)(1)(b), UCMJ? NMCCA published decision. Regarding factual sufficiency, this is the Court’s first case to address the application of the recently amended Article 66, UCMJ, standard of review. Section 542(e) of the FY 2021 National Defense Authorization Act made the new standard applicable to offenses that occur after 1 Jan 2021. Smith v. Arizona watchCourtesy of Prof. Berman's excellent blog.
I have not followed too closely the SCOTUS briefing in Smith v. Arizona, a case which concerns application of the Confrontation Clause of the Sixth Amendment when prosecutors seek to present at trial a report prepared by a different crime lab analyst than the one able to testify. But a quick review of some of the press reports of today's oral argument suggest that the drug defendant seems likely to prevail in this case and that maybe a jurisprudentially significant ruling might be afoot. From Law.com, "Justices Seem Skeptical of ‘Substitute Expert’ Used in Arizona Criminal Trial" From Law360, "Justices Toy With New Testimony Rule In Ariz. Expert Dispute" From SCOTUSblog, "Court appears to favor Arizona man’s confrontation clause claim" The full oral argument transcript can be accessed here. No. 24-0050/AR. Rene D. Alfaro v. Judges of the CCA. CCA 20220282. Petitioner has filed a petition for extraordinary relief in the nature of a writ of mandamus and a writ of prohibition. He asks this Court to issue a writ of mandamus directing the United States Army Court of Criminal Appeals to permit military appellate defense counsel to transmit sealed materials in the record of trial – with the exception of Item Y – to his civilian appellate defense counsel, who now lives in Israel. He also asks this Court to issue a writ of prohibition ordering the same court not to enforce Army Court of Criminal Appeals Rule 6.9 in any matter before that court.
This Court previously issued a writ of mandamus, except for Item Y, providing for access to the sealed materials. Alfaro v. Judges of United States Army Court of Criminal Appeals, No. 23-0258/AR (C.A.A.F. Oct. 24, 2023)(sum. disp.). Next, Petitioner moved the lower court for an order to copy and transmit the sealed items to his civilian counsel. CCA Motion for Leave to Transmit Sealed Materials of 22 Nov 2023. The lower court summarily denied the motion. Petitioner subsequently submitted his most recent writ petition to this Court seeking enforcement of the writ of mandamus. This Court responded by issuing an order to the government to answer the petition and to show cause why a military appellate defense counsel has not been detailed to represent Petitioner. Alfaro v. Judges of United States Army Court of Criminal Appeals, No. 24-0050/AR (C.A.A.F. Dec. 18, 2023)(order). In response to that order, Respondent has filed an answer. On consideration of all pleadings of record, we note that military appellate defense counsel has been detailed to represent Petitioner before the lower court. We further note that technological means exist whereby the sealed materials may be securely transmitted or shared virtually with civilian appellate defense counsel. Accordingly, it is ordered that the petition for a writ of mandamus is granted. Without further delay, the lower court shall permit and facilitate the military counsel to securely transmit or virtually share the sealed materials – except for Item Y – with civilian counsel. The petition for a writ of prohibition as to A.C.C.A. R. 6.9 is denied without prejudice to Petitioner's right to raise the matters asserted during the course of normal appellate review Wednesday, January 3, 2024 Petition for Reconsideration Granted No. 22-0249/CG. U.S. v. Fernando M. Brown. CCA 001-69-21. On consideration of Appellant's petition for reconsideration, it is ordered upon consideration of Appellant's petition for reconsideration of this Court's opinion issued on October 23, 2023, United States v. Brown, __ M.J. __, (C.A.A.F. Oct. 23, 2023), that the petition for reconsideration is granted in part and denied in part, that the Court's judgment is vacated, and that no additional filings are authorized. Further action on the case shall be held in abeyance pending a new decision issued by the Court. Brown is the one published opinion in this new term and is here. The request for reconsideration is here. The amended decision is here. Tuesday, September 26, 2023
Orders Granting Petition for Review No. 23-0204/MC. U.S. v. Thomas H. Tapp. CCA 202100299. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issue: WAS APPELLANT DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO AN IMPARTIAL JUDGE? Appellant's redacted brief NMCCA Opinion, __ M.J. ___ (N-M. Ct. Crim. App. 2023). Air ForceUnited States v. Gammage (Air Force). The "counter" for post-trial delay in docketing a case with AFCCA stops when first docketed. Remands to complete or correct the record do not count when considering relief and prejudice for post-trial delay in forwarding a record of trial. The court said, While we recognize that records of trial are remanded on occasion due to omissions or other defects, we decline to create a new requirement for cases that are docketed, remanded, and later re-docketed with this court. We find the original standards announced in Moreno, and its progeny, adequately protect “an appellant’s due process right to timely post-trial and appellate review.” Livak, 80 M.J. at 633. Most of the AF remands are to correct the administrative requirements of completing actions (incorrect EoJs, for example) others, but fewer are remanded to complete the record because of missing items. See, e.g., United States v. Goodwater, ACM 40304, 2023 CCA LEXIS 231 (A.F. Ct. Crim. App. May 31, 2023) (remand for missing documents (sentenced Apr. 22)); United States v. King, ACM 39927, 2023 CCA LEXIS 383 (A.F. Ct. Crim. App. Sept. 11, 2023) (remand because CA failed to approve sentence); United States v. Lake, ACM 40168, 2023 CCA LEXIS 423 (A.F. Ct. Crim. App. Oct. 5, 2023) (13 exhibits unviewable by Judge Annexstad and parties); United States v. Lampkins, ACM 40135, 2023 CCA LEXIS 465 (A.F. Ct. Crim. App. Nov. 2, 2023) (MJ ruling on suppression motion missing/sentence adjudged Nov. 2020); United States v. McCoy, ACM 40119, 2023 CCA LEXIS 476 (A.F. Ct. Crim. App. Nov. 9, 2023), in which Judge Ramírez wrote (with Annexstad and Gruen on the panel). This case is before us a second time as we earlier addressed issue (8). On 31 October 2022, this court returned the record of trial to the military judge pursuant to Rule for Courts-Martial (R.C.M.) 1112(d) as the disc containing the audio recording from Appellant's trial was missing. The issue has since been resolved. The case was re-docketed with this court with a corrected record. McCoy was sentenced in Apr. 2021, to two years confinement. Assuming only minimum good time credit, his MRD would have been Dec. 2022, and his FTD would have been Apr. this year. By not including the remand period, does that encourage or condone sloppy work in situations where it has already taken a long time to deliver the record? Perception suggests the AF has significantly more correction remands than the other services. It seems that the field and others are basically putting the CCA (and appellate counsel) in the role of checking their work, thus increasing the workload of the appellate judges, CCA court staff, and appellate counsel. The current AFI 52-203 seems to have what's needed for a checklist. Gamage was sentenced in May 2022. On 5 May 2023, the Appellant submitted his assignment of error brief in which he raised one issue: the record of the trial was incomplete in that it was missing all eight attachments to the stipulation of fact, which was admitted as a prosecution exhibit during his court-martial. On 5 June 2023, we remanded this case to the Chief Trial Judge, Air Force Trial Judiciary, to address the missing attachments to the Appellant’s stipulation of fact. The record was redocketed in June 2023. However, in August, Appellant submitted another assignment of error brief and again alleged that the record of trial was incomplete, in that it still was missing four of ten photographs that were part of Attachment 6 to the stipulation of fact. Appellant also raised one additional issue: whether the Government’s submission of an incomplete record of trial to this court subjected Appellant to unreasonable post-trial delay. Why is the court and its staff having to double check work from the field on a regular basis?
For Gammage the delay didn't matter because there were no errors that prejudiced the Appellant requiring relief. When people ask why appeals take time, Gammage is representative of one reason. The appellate defense shop is tasked to have every record read to determine if there are meritorous issues or Grostefon issues, or whether it can be submitted on its merits. Here, while the appellate defense counsel was dealing with the record, she was not able to work on another, perhaps more deserving case. So too, at least Judge Annexstad had to read the full record. True, he or one of the other panel members had to read it anyway. But, in dealing with the post-trial errors he was distracted from reviewing another case or writing an opinion in another case. If your answer is "so what, it likely only took a few minutes for him and the staff to get the order written, signed, and sent,"--I'm not sure you should say that to his face. Thus the long way round to recommending the court does initially count any remand time for post-trial processing purposes. The court could then still consider whether the extra time prejudiced the appellant. Or how about this. Whenever there is a "correction" remand, the court will automatically credit the appellant with 30 days off the confinement as a remedial and exemplary measure? Or perhaps, ignore the issue. Compare with Gammage, "Although not raised by Appellant, we note that the record of trial does not contain a copy of the recording of the preliminary hearing. R.C.M. 405(j)(5) requires the Government to ensure the preliminary hearing is recorded and R.C.M. 405(j)(2)(B) requires this recording be included as part of the preliminary hearing report. Additionally, if not offered as an exhibit, R.C.M. 1112(f)(1)(A) requires the preliminary hearing report be attached as part of the record for appellate review. Appellant has not claimed prejudice from this omission, and we find none. Moreover, despite this omission we were able to complete our Article 66(d), UCMJ, 10 U.S.C. § 866(d), review." United States v. Reynolds, No. ACM 40308, 2023 CCA LEXIS 407, at *2 n.4 (A.F. Ct. Crim. App. Sep. 28, 2023). See also, As noted above, the EOJ contains several errors that do not properly account for the disposition of all charges and specifications on the various charge sheets. Although we find no prejudice, Appellant is entitled to have court-martial records that correctly reflect the content of his proceeding. In accordance with R.C.M. 1111(c)(2), we modify the EOJ and direct that it be included in the record. United States v. Truss, No. 202200198, 2023 CCA LELXIS __ (N-M. Ct. Crim. App. Dec. 28, 2023). Or perhaps, remove the CA from post-trial, have the MJ issue a Judgment, require an accused to submit any brief in accordance with Article 38(c) within 30 days of being sentenced, and permit the MJ to hold a hearing on the 38(c) brief (this would allow the MJ to correct errors and address significant issues, and encourages compliance with defense counsel's obligations under Article 38(c)(1)) (As an aside, Article 38 is still good law, and nothing prevents the DC submitting a memorandum of errors). The MJ could also be tasked with the authorities under Article 60a (this would encourage uniformity in post-trial because the judiciary would have a better sense of results across the service, while at the same time allowing the MJ to consider special circumstances of individual. Provisions of Article 60b(a) could be rolled into the MJ's post-trial role. Article 60b(b) is already available to the military judge because of caselaw encouraging MJs to resolve issues earlier rather than later at a quasi-Dubay hearing. And see R.C.M. 1104(a). I'd be inclined to move R.C.M. 1108 to the judiciary. See, e.g., Fed. R. Crim. Pro. 33 (new trial), 35 (correcting errors and reduction in sentence for "substantial assistance"), 36 (correcting clerical errors). CAAF has given a Boxing Day gift as follows.
No. 24-0011/MC. U.S. v. Sean M. Swisher. CCA 202100311. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issue: DID THE LOWER COURT ERR BY APPLYING THE WRONG LEGAL STANDARD TO ITS SENTENCE APPROPRIATENESS ANALYSIS? He makes good points, but his use of the ellipses here cuts out the most controversial part of the email.
"The email read in part, “hopefully a Soldier will be able to get a fair trial. You and your teams are now the ONLY line of defense against false allegations… [y]ou literally are the personal defenders of those who no one will now defend, even when all signs indicate innocence.”" What was omitted? The reference to "sobriety regret" as well as the potshot at Congress. Maybe these would change nothing for Newton, but he does everyone no favors by hiding the ball. |
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