In United States v. Serianne, the CAAF affirmed an NMCCA decision that a Navy order to report civilian DWI/DUI convictions was unlawful and not enforceable at court-martial.
Navy Times reports:
The Navy’s self-reporting requirement for drunken driving arrests will fundamentally change as a result of a recent military court ruling, the Navy’s top lawyer said.
United States v. Roach has been returned to AFCCA for a second time.
Initially the case was sent back because appellant’s case was decided before his counsel submitted a brief, and because the chief judge on his panel had made some public comments relating to the case.
This time the case goes back because the chief judge also recommended his temporary successor for the Roach case, thus violating the principal that a recused judge should have no further contact with the case.
CAAF has decided United States v. Bagstad. Judge Stuckey wrote for himself, Effron and Ryan, with Baker writing a dissent for himself and Erdmann.
We granted review to determine whether the military judge abused his discretion in denying Appellant’s challenge for cause against Captain (Capt) Stojka, who sat with his subordinate on a court-martial panel composed of three members. We hold that the military judge did not err in denying the challenge for cause.
First the opinion reviews the general for challenges. The court then got into the meat of the issue.
United States v. Matthews is an interesting new Army decision.
In this case the appellate courts ordered a DuBay hearing. During that hearing the prior military judge testified as to his rationale for various decisions at trial. Using that testimony, the Army Court of Criminal Appeals applied the harmless beyond reasonable doubt standard to findings of constitutional error. On appeal, CAAF ordered a new review by ACCA specifically excluding the testimony of the judge at the DuBay hearing.
On 23 July 2009, the United States Court of Appeals for the Armed Forces set aside that decision, and remanded to this court for further review. United States v. Matthews, 67 M.J. 29, 43 (C.A.A.F. 2009). Specifically, our superior court held that it was error to consider the testimony of the original trial judge elicited during the DuBay hearing because it violated the protected deliberative processes of military judges sitting alone. Id. This court was instructed to reconsider our conclusion on harmless error without that improper testimony. Id.
The CGCCA has issued a 2-1 opinion in United States v. Lucas, and it is likely a case to watch with CAAF.
The CGCCA has been the most vigilant of the services in protecting an accused’s post-trial rights, so the decision in this case seems odd. There is no evidence that any of the proper procedures were followed in this case except for allowing the defense counsel to review the ROT.
Also, there is no clemency materials submitted by either the defense counsel or accused. Did the defense counsel contact the appellant? Did the appellant have anything to submit?
CAAF has decided United States v. Campbell, __ M.J. ___ (C.A.A.F. 2009).
We granted review of three issues raised by the decision of
the United States Navy-Marine Corps Court of Criminal Appeals
(CCA), as follows:
I. WHETHER THE LOWER COURT ERRED IN REASSESSING
APPELLANT’S SENTENCE, AS (1) ITS REASSESSMENT
CALCULUS WAS BASED UPON AN ERRONEOUS
UNDERSTANDING OF WHAT SPECIFICATIONS WERE MERGED;
(2) IT ABUSED ITS DISCRETION IN FAILING TO ORDER
A SENTENCE REHEARING IN LIGHT OF APPELLANT BEING
SENTENCED UPON TWICE THE AMOUNT OF SPECIFICATIONS
AS APPROPRIATE; AND (3) THE UNDERLYING LOGIC USED
TO NOT REDUCE APPELLANT’S SENTENCE WAS FAULTY.
II. WHETHER THE LOWER COURT ERRED IN FINDING THAT
POSSESSION OF THE SAME IMAGES OF CHILD
PORNOGRAPHY ON DIFFERENT MEDIA CAN BE CHARGED AS
SEPARATE CRIMES UNDER 18 U.S.C. § 2252A.
III. WHETHER THE LOWER COURT ERRED IN DETERMINING THAT
THE THREE SPECIFICATIONS UNDER CHARGE II WERE NOT
“FACIALLY DUPLICATIVE.”
We hold that Appellant’s unconditional guilty plea waived
Issue II on appeal, and that the specifications were not
“facially duplicative” under Issue III. However, we hold that
the CCA erred in part on Issue I and remand for sentence
reassessment.
Court-Martial Trial Practice Blog