Though not raised by Appellant, an error in the staff judge advocate’s recommendation (SJAR) compels us to remand the case for new post-trial processing.
United States v. Spelts, Air Force Court of Criminal Appeals (May 2018).
Now for this.
Friend DP notes a pending Supreme Court petition in Gamble v. United States. It looks like the case was supposed to have been presented at Thursdays conference.
Issue: Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.
If the court grants the petition and if the court rules in the petitioner’s favor this would be a big deal for military accused’s. As we know, there have been quite a few cases over the years (I’ve had a number of them) in which the client was tried in civilian court and the military wants another go at it. The general rule is that if tried in a state court or the District of Columbia that is a “separate sovereign” from the federal government. Petitioner’s brief begins:
Meet service members entrusted with guarding nuclear missiles that are among the most powerful in America’s arsenal. Air Force records obtained by The Associated Press show they bought, distributed and used the hallucinogen LSD and other mind-altering illegal drugs as part of a ring that operated undetected for months on a highly secure military base in Wyoming. After investigators closed in, one airman deserted to Mexico.
This is from a recent AP report.
Here from 2016, U.S. Air Force investigates drug activity of nuclear security force. https://www.cnn.com/2016/03/18/politics/us-air-force-drug-activity/index.html
Military personnel interviewed as a suspect by a MCIO are never told they are under arrest, but that’s the effect of the MCIO taking fingerprints, “mug-shots” and DNA.
Once “arrested” you become titled and that information goes into the federal data base.
Same if you are prosecuted, although the MCIO is supposed to update the information about you and your status.
I’m having a problem with some appellate cases.
The charges are referred, trial sessions are held, for one reason or another the charges are withdrawn, and then they come back.
When the ROT is prepared the earlier hearings are not part of the ROT, why not?
In United States v. Kelly, __ M.J. __, No.17-0559/AR the CAAF decides that a court of criminal appeals has the power to disapprove a mandatory minimum punitive discharge, reversing the published en banc (but non-unanimous) decision of the Army CCA.
While Congress changed the law to impose a mandatory dishonorable discharge in some cases, they did not change Article 66(c), UCMJ under which a CCA acts to determine whether or not the findings and sentence of a court-martial should be approved. With this in mind, CAAF decides in favor of the CCA’s power to disapprove a DD.
Military personnel are told to believe the victim and consider the accused guilty unless, the quote from a former Air Force TJAG, there’s a silver bullet showing innocence. But what if the silver bullet isn’t available.
Here the state trooper was saved by his bodycam from a false allegation.
An attorney is apologizing for spreading allegations that a Texas Department of Public Safety trooper sexually assaulted a woman during a traffic stop and arrest in North Texas. The apology came hours after DPS released two hours of the trooper’s body camera video.
Spilman reports that: CAAF decided the Navy case of United States v. Andrews, __ M.J. __, No.17-0480/NA (CAAFlog case page) (link to slip op.), on Tuesday, May 22, 2018. Rejecting the Navy-Marine Corps Appellate Government Division’s argument that the failure to object to improper argument at trial waives any error on appeal, CAAF concludes that any improper argument by the prosecution in this particular case was harmless and affirms the decision of the Navy-Marine Corps CCA. The report highlights a portion of the opinion:
Despite our finding of no prejudice, the prosecutorial conduct in this case raises concerns we feel compelled to address. We remind all military judges of their “sua sponte duty to insure [sic] that an accused receives a fair trial.” United States v. Watt, 50 M.J. 102, 105 (C.A.A.F. 1999) (internal quotation marks omitted) (citation omitted); see also United States v. Knickerbocker, 2 M.J. 128, 129 (C.M.A. 1977) (“At the very least, the judge should have interrupted the trial counsel before he ran the full course of his impermissible argument.”). Military judges are neither “mere figurehead[s]” nor are they “umpire[s] in a contest between the Government and accused.” Watt, 50 M.J. at 105 (internal quotation marks omitted) (quoting United States v. Kimble, 23 C.M.A. 251, 253, 49 C.M.R. 384, 386 (1974)). Nor can a defense counsel sit like a bump on a log—he or she owes a duty to the client to object to improper arguments early and often. See DeFreitas v. State, 701 So.2d 593, 602 (Fla. Dist. Ct. App. 1997) (explaining the court is unlikely to “excuse counsel for his failure” to object because a defense counsel “has the duty to remain alert to such things in fulfilling his responsibility to see that his client receives a fair trial”). Failure to do so may give rise to meritorious ineffective assistance of counsel claims. See F. Emmit Fitzpatrick & NiaLena Caravasos, Ineffective Assistance of Counsel, 4 Rich. J.L. & Pub. Int., 67, 81 (2000) (listing federal cases in which the circuit courts found ineffective assistance of counsel for failure to object (citing Williams v. Washington, 59 F.3d 673, 684 (7th Cir. 1995); Henry v. Scully, 78 F.3d 51, 52–53 (2d Cir. 1996); Bolander v. Iowa, 978 F.2d 1079, 1083–84 (8th Cir. 1992); Crotts v. Smith, 73 F.3d 861, 867 (9th Cir. 1996); Atkins v. Attorney General of Alabama, 932 F.2d 1430, 1432 (11th Cir. 1991); and Mason v. Scully, 16 F.3d 38, 45 (2d Cir. 1994))). Finally, we remind trial counsel they are:
representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, [they are] in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer…. It is as much [their] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
On July 11, 2017 (79 FR 59938-59959), the JSC published a Notice of Proposed Amendments concerning procedure and evidence applicable in trials by court-martial, non-judicial punishment proceedings, and the punitive articles of the Uniform Code of Military Justice as amended by the Military Justice Act of 2016, Division E of the National Defense Authorization Act for Fiscal Year 2017 and follow-on changes made by the National Defense Authorization Act for Fiscal Year 2018.
Comments and materials received from the public are available under Docket ID Number DOD-2017-OS-0032, and at the following link https://www.regulations.gov/ docket? D= DOD-2017-OS-0032.
The JSC considered each public comment and made some modifications to the proposed amendments accordingly.
The NMCCA decided United States v. Kmiecik on 17 May 2018.
Kmiecik challenges the military judge’s decision to admit “a signed acknowledgment from the appellant that he understood the Marine Corps’ policy concerning the illegal use of drugs[,]” during sentencing.
For trial counsel and judges, and defense counsel.
Court-Martial Trial Practice Blog