Court-Martial Trial Practice

From time to time  I recommend articles, cases, or books to read that may be of interest and help to practitioners.  Here are couple of plays to add to the mix, courtesy of Global Military Justice Reform blog, and I quote.

Anthony Thommasini of The New York Timeshas written this strong and quite positive review of the opera “An American Soldier,” concerning the suicide of U.S. Army Private Danny Chenand the ensuing court-martial. It’s playing in St. Louis.

Can you think of another opera that concerns military justice? Benjamin Britten‘s Billy Budd and the more obscure My Lai come to mind. There is also an Overture to The Andersonville Trial, about the notorious Confederate prison camp.

The director of public prosecutions has pledged to apologise over failures in 47 rape and serious sexual offence cases where vital evidence was withheld from defence lawyers.

From Juliet Bremner with ITV(UK).

On Tuesday, the Crown Prosecution Service (CPS) revealed that issues with disclosure had been identified in 47 of 3,637 cases in England and Wales that were reviewed between January and mid-February.

“of late, an important shift has occurred in the views of state and lower federal courts, which have increasingly found fault with “new-generation” SORN laws, which in many respects are more expansive and onerous than those condoned by the” Supreme Court in Smith v. Doe, 538 U.S. 84 (2003) (cleaned up?).

In the federal judicial realm, the Sixth Court of Appeals in Does v. Snyder unanimously invalidated on federal ex post facto grounds Michigan’s law that, like many other amended state laws, not only requires in-person information verification and updating by registrants, but also limits where they can live and work. To the Sixth Circuit, Michigan’s SORN law was “something altogether different from and more troubling than Alaska’s circa 2000 first-generation registry law.”  Tellingly, when the State petitioned the U.S. Supreme Court for certiorari, and the Court invited the Acting U.S. Solicitor General to weigh in and brief the matter, the latter acknowledged the correctness of the decision in light of what it termed the “distinctive features” of Michigan’s law.  Whether it is accurate to say that the Michigan law varies so substantially as to make it sui generis is certainly subject to dispute,19 but the reluctance of the Court and the Solicitor General (in the Trump administration, no less) to let stand a circuit decision categorically invalidating a state SORN law, using quite denunciatory language,20 was a significant surprise.

From, Logan, Wayne A., Challenging the Punitiveness of ‘New-Generation’ SORN Laws (May 18, 2018). 21 New Criminal Law Review (2018 Forthcoming). Available at SSRN: https://ssrn.com/abstract=3180899

The rule of lenity is something you should have in the toolbox regardless of being a trial or appellate counsel.

Intisar A. Rabb, The Appellate Rule of Lenity: Responding to Abbe R. Gluck & Richard A. Posner, Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals.  131 HARV. L. REV. F. 179 (2018).

Lenity’s prominence is unsurprising for a few reasons. First, as an ancient principle directing judges to construe ambiguous criminal statutes narrowly, SeeAntonin Scalia, A Matter of Interpretation 29 (Amy Gutmann ed., 1997) (“The rule of lenity is almost as old as the common law itself, so I suppose that is validated by sheer antiquity.”

You’ll remember Hills, Hukill, and Guardado.

Basically, there are problems when the prosecution tries to invoke MRE 413 or 414 when all of the alleged events are charged.  The result has been many cases being dismissed and sent for retrial or alternative actions.  But, as reflected below, not all cases have a positive result for the appellant.

No. 18-0107/AR. U.S. v. Jameson T. Hazelbower. CCA 20150335. On consideration of the granted issue, 77 M.J. 273 (C.A.A.F. 2018), the judgment of the United States Army Court of Criminal Appeals, United States v. Hazelbower, No. 20150335 (A. Ct. Crim. App. Nov. 22, 2017) (unpublished), and the judgment of this Court in United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017), we conclude that the military judge’s erroneous use of charged misconduct for propensity purposes was harmless beyond a reasonable doubt, for “there [i]s no reasonable possibility that the error contributed to [Appellant]’s verdict.” United States v. Hukill, 76 M.J. 219, 222 (C.A.A.F. 2017) (citation omitted). In the instant case, the victims’ accounts were corroborated by a wealth of independent supporting evidence, including (but not limited to) admissions of rape, incriminating text and Skype messages, and the exchange of nude photographs. Given the overwhelming evidence of Appellant’s guilt, we are convinced beyond a reasonable doubt that Appellant was convicted on the strength of the evidence alone. Guardado, 77 M.J. at 94. Therefore, it is ordered that the judgment of the United States Army Court of Criminal Appeals is affirmed.

The author of this article clearly doesn’t understand.  THE BIGGEST OBSTACLE TO THE PENTAGON’S WAR ON SEXUAL ASSAULT: THE MILITARY JUSTICE SYSTEM: A legal principle intended to protect service members after World War II has spawned a dangerous precedent.