Of interest to military justice practitioners is a new grant of certiorari at the U. S. Supreme Court today. SCOTUSBlog reports:
Issues: Whether, and under what circumstances, the erroneous submission of a deliberate-ignorance instruction is harmless error.
As we see frequently, texts and messages on cellphones can be important evidence in a case. Most of the time the MCIO’s merely got the CW to provide a screenshot and otherwise cherry-pick what they want to take as evidence in the beginning. Of course the cherry-picking is in favor of the CW and they ignore what might be Brady-plus material. True, I’m starting to see more MCIO’s do a Cellbrite extraction, which is good.
United States v. Pham from the NMCCA teaches us that we need to be precise in what we ask for when we are seeking the CW’s phone.
Here, the CW “voluntarily provided her cell phone, a Samsung Galaxy S-IV, to NCIS for forensic examination. NCIS investigators performed a logical extraction of the phone and returned it to PI the same day. In response to a January 2016 defense discovery request for a copy of the physical extraction” the defense got “a logical extraction performed 11 months earlier.”
A year ago an O-4 client was accused of various physical assaults on his son over an eight-year period. He faced two charges with a total of 10 specifications. Prior to trial we were able to identify very helpful information about the credibility of the allegations, despite there being medical evidence and prosecution expert testimony. Prior to trial, one charge was dismissed and we proceeded to a jury trial on one charge and eight specifications. The judge made a ruling close to the end of the prosecution case and the case was delayed several months while to prosecution appealed the judge’s ruling. After the appeals court denied the prosecution appeal we continued the trial. At the end of the prosecution case, the judge entered a finding of not guilty on three of the eight specifications. At issue overall was whether the alleged acts happened, or if there were some minor acts that were exaggerated and the doctrine of parental discipline.
(A motion for a finding of not guilty is usually very easy for the prosecution to overcome because all they have to show is that there is some evidence upon which a rational jury can decide–a very low standard; and the judge isn’t allowed to make credibility evaluations.)
After all the evidence was submitted, instructions were given, and arguments were made–the members deliberated for about 3.5 hours. They returned a finding of guilt as to one of the remaining five specifications. After a sentencing hearing, the jury announced a sentence of “No Punishment.” In the military, this is an approved “sentence” and effectively means that the consequences of a conviction alone are likely considered sufficient to hold the person accountable and promote rehabilitation.
We all know that military defense counsel is required to advise a client of potential sex offender registration issues since United States v. Miller, 63 M.J. 452, 458-59 (C.A.A.F. 2006).
With that in mind, United States v. Toth, No. 201700014 (NMCCA 28 February 2018) is worth the read.
In Toth, the appellant alleged he was misadvised in his guilty plea by his defense counsel that he would not have to register as a sex offender and that his counsel were ineffective for that reason. At trial
In late summer 2014, my client and another were accused of conspiring with each other and committing sexual assaults on a single complaining witness. The events were alleged to have happened at a party at a local hotel. As the investigation progressed six others were implicated in an alleged group sexual assault.
My client and his alleged co-conspirator had charges preferred in January 2016 and in April they were arraigned at a general court-martial. We then experienced many delays because of funding issues until trial in February 2018. Over the months, the six others had their allegations resolved at summary court-martial, nonjudicial punishment, and administrative separation—all for offenses collateral to the alleged sexual assaults.
As our investigation and preparation progressed we were able to develop what we believed to be a motive to fabricate a false allegation of sexual assault, for what psychologists call secondary gain (to police and lawyers that’s called motive). The complaining witness was in trouble: she’d lied to command personnel about where she was going that day, and like the eight accused’s she violated various rules of alcohol and fraternization–she and others were about to undergo a surprise breathalyzer that night. Her answer was to claim sexual assault for what we believed to be consensual group sex.
Let’s take a look at United States v. Criswell, a case decided by the Army adverse to the appellant, and now pending review at CAAF, on the following issue.
No. 18-0091/AR. U.S. v. Andrew J. Criswell. CCA 20150530. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN DENYING A DEFENSE MOTION TO SUPPRESS THE ACCUSING WITNESS’S IN-COURT IDENTIFICATION OF APPELLANT.
We know that the Sixth Amendment right to confront witnesses does not apply at a sentencing hearing (although the Due Process Clause does). Here we have a report of United States v. Carrillo, 2018 U.S. Dist. LEXIS 21731 (E.D. N.Y. Feb. 9, 2018), in which the judge held that the exclusionary rule does not apply at sentencing. The district court judge cited to United States v. Tejada, 956 F.2d 1256, 1263 (2d Cir. 1992).
When the Congress, the media, and commanders called for a crackdown on military sexual assaults, the fear among the defense bar was the specter of unlawful command influence. Most of the cases have focussed on pretrial and post-trial. But the biggest fear was realized in United States v. Schloff, a case I did at trial and on appeal.
“At the beginning of deliberations on findings of appellant’s court-martial, the president and senior ranking member of the panel, [COL JW], made a statement to the effect that based on the political climate, the Army could not seem weak or soft in dealing with sexual harassment or assault. He also asked a question to the effect of, ‘How does the Chief of Staff of the Army’s current emphasis on sexual harassment affect the findings and our decision in this matter?’ [COL AM] made some unspecified but similar comments or comments indicating agreement with [COL JW].
Although we have an independent duty to determine the question of UCI de novo, we concur with the DuBay military judge that actual and apparent UCI occurred and the government failed to establish “beyond a reasonable doubt that UCI . …. was not improperly brought to bear on any member during the findings phase of [appellant’s] court-martial.” As correctly noted by the DuBay military judge “[COL JW] injected policy and career concerns into the deliberations [and h]e did so despite the military judge’s clear guidance that the case be decided solely on the evidence presented in court and the instructions on the law given by the military judge.” The UCI was a “palpable cloud throughout the deliberations” left to permeate in each panel member’s decision-making process. “
In United States v. Sager, the accused was convicted of abusive sexual contact because the victim was “otherwise unaware” of the acts. The Navy-Marine Corps Court of Criminal Appeals affirmed the findings and sentence. Appellant petitioned the CAAF.
This case is before us for a second time. The Court of Appeals for the Armed Forces (CAAF) reversed our earlier opinion affirming the appellant’s conviction for abusive sexual contact.2 At the heart of the appellate litigation in this case is a question over the interpretation of Article 120(b)(2), UCMJ, which proscribes sexual contact with people the accused knows, or reasonably should know, are incapable of consenting to the contact because they are “asleep, unconscious, or otherwise unaware” that the contact is occurring. The unusual posture of this case after trial required us to decide whether the terms asleep, unconscious, and otherwise unaware represented distinct theories of criminal liability. In our first review of this case, we held that they do not. Rather, we held that the reasons for a victim’s lack of awareness, be it sleep, unconsciousness, or something else, were only relevant to whether the accused should have known that the victim was unaware of the contact.
The CAAF held that our interpretation was incorrect. Reversing this court, the CAAF held that “asleep, unconscious, or otherwise unaware” represents three separate theories of liability. The CAAF also held that the term otherwise unaware means unaware in a manner different from both sleep and unconsciousness.
In general a court-martial accused can waive most rights and privileges in a pretrial agreement. A common term where there are multiple accuseds (drug or sexual assault cases for example) is an agreement to testify truthfully in another court-martial. But,
Rule for Courts-Martial (R.C.M.) 705(c)(1) expressly prohibits terms or conditions of a PTA that are not voluntary or that deprive an accused of certain rights. “The interpretation of a pretrial agreement is a question of law, which is reviewed under a de novo standard.” United States v. Acevedo, 50 M.J. 169 172 (C.A.A.F. 1999).
And
Court-Martial Trial Practice Blog
