Court-Martial Trial Practice Blog
Since United States v. Hills, and then United States v. Hukill, the appellate courts have been trying to sort out quite a few cases on remand. Here is a list of the most recent CAAF actions.
No. 18-0087/AF. U.S. v. Jonathan P. Robertson. CCA 39061. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and in light of United States v. Guardado, 77 M.J. 90 (C.A.A.F.2017), it is ordered that said petition is hereby granted on the following issue:
WHETHER THE UNCONSTITUTIONAL PROPENSITY INSTRUCTION IN THIS CASE WAS HARMLESS BEYOND A REASONABLE DOUBT.
The decision of the United States Air Force Court of Criminal Appeals is reversed as to the Charge and Specification 3 thereunder and the sentence. The findings of guilty as to the Charge and Specification 3 thereunder and the sentence are set aside. The record is returned to the Judge Advocate General of the Air Force. A rehearing is authorized.
No. 18-0101/AF. U.S. v. Xavier L. Rice. CCA 39071. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and in light of United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017), it is ordered that said petition is hereby granted on the following issue:
WHETHER THE COURT OF CRIMINAL APPEALS ERRED IN DECIDING THAT A PROPENSITY INSTRUCTION IN VIOLATION OF UNITED STATES v. HILLS WAS HARMLESS BEYOND A REASONABLE DOUBT BECAUSE IT DID NOT CONTRIBUTE TO THE VERDICT.
The decision of the United States Air Force Court of Criminal Appeals is reversed as to Specifications 3, 4, and 5 of the Charge and the sentence. The findings of guilty as to Specifications 3, 4, and 5 of the Charge and the sentence are set aside. The remaining findings are affirmed. The record is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals. That court may order a rehearing on Specifications 3, 4, and 5 of the Charge and the sentence.
No. 18-0122/AF. U.S. v. Corey J. Campbell. CCA 388075. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and in light of United States v. Guardado, 77 M.J. 90 (C.A.A.F.2017), it is ordered that said petition is hereby granted on the following issue:
WHETHER THE AIR FORCE COURT INCORRECTLY FOUND THAT A MILITARY JUDGE’S IMPERMISSIBLE USE OF PROPENSITY EVIDENCE WAS HARMLESS BEYOND A REASONABLE DOUBT.
The decision of the United States Air Force Court of Criminal Appeals is reversed as to Charge I and Specification 4 thereunder, Additional Charge I and Specifications 1 and 2 thereunder, and the sentence. The findings of guilty as to Charge I and Specification 4 thereunder, Additional Charge I and Specifications 1 and 2 thereunder, and the sentence are set aside. The remaining findings are affirmed. The record is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals. That court may order a rehearing on Charge I and Specification 4 thereunder, Additional Charge I and Specifications 1 and 2 thereunder, and the sentence.
You will note of course that these are all Air Force cases.
When the Federal Rules Advisory Committee was considering adopting Fed. R. Evid. 413 and 414, all but one voter rejected the rule as unnecessary and problematic. The one vote in favor was the Department of Justice representative. When the rule change was forwarded to Congress, the DOJ representative convinced the Congress to adopt the rule. In accordance with the Military Rules of Evidence, the federal rule became applicable to courts-martial. And there the problems began culminating in Hills and Hukill. There have been many cases affected and reversed. Messing with the rules to get convictions has lead to — a mess. In the process, both the complaining witness and the accused have been harmed (as well as an accused’s family), as has, potentially the reputation of military justice. Sadly, politics overcame a rational approach to criminal accountability and has had the reverse effect of establishing guilt and accountability.