This site is for the trial practitioner (the military lawyer) of military justice, and for the information of U.S. active duty, Guard, and reserve service-members, their spouses and their families. Our goal is to focus on trial practice issues in cases arising under the UCMJ and being tried at court martial. We hasten to add that nothing on this blog should be taken as specific legal advice for a specific client.

O’Keeffe, Eamonn (2016) ““Such Want of Gentlemanly Conduct:” The General Court Martial of Lieutenant John de Hertel,” Canadian Military History: Vol. 25: Iss. 2, Article 2. <Available at: http://scholars.wlu.ca/cmh/vol25/iss2/2>

At this court-martial of a junior officer, the British Army assembled 15 more senior officers to serve as the “jury” in the case.  Today people whing about getting at least five officers in the same place.

 

The SVC also testified at the post-trial Article 39(a), UCMJ, session. When asked by the trial defense counsel if it was the “standard in practice as an SVC to meet with the military judge ex parte,” the SVC stated, “Generally, yes. We’re usually not included in [R.C.M.] 802 conferences, so generally the judge will speak with us, kind of one-on-one, sometimes before the trial begins and discuss just kind of administrative matters.” The SVC did not recall having a post-trial feedback session with the military judge.

Slip op. at 2.

In United States v. Turner, the AFCCA had several issues before it, two being:

John Wesley Hall’s website is an excellent resource for issues involving the Fourth Amendment–FourthAmendment.com.  In pointing to a search warrant case Mr. Hall quotes from the opinion.

We remind McCollum’s counsel that “the statement of facts in an appellate brief should be a concise narrative of the facts stated in accordance with the standard of review appropriate to the judgment and should not be argumentative.” King v. State, 799 N.E.2d 42, 45 n.2 (Ind. Ct. App. 2003) (citing Ind. Appellate Rule 46(A)(6)), trans. denied (2004), cert. denied. Also, we disapprove of counsel’s accusation that the State has “stoop[ed]” to “desperate measures … to attempt to demonstrate the reliability and credibility of the confidential informant” mentioned in the affidavit and has “either played word games with this court or simply fabricated facts in its efforts to make an argument.” Reply Br. at 10, 11. Such hyperbolic barbs have no place in an appellate brief. Cnty. Line Towing, Inc. v. Cincinnati Ins. Co., 714 N.E.2d 285, 291 (Ind. Ct. App. 1999), trans. denied (2000).

McCollum v. State, 2016 Ind. App. LEXIS 370 (Sept. 30, 2016).

Packingham v. North Carolina is the case of Lester Packingham, a North Carolina man who became a registered sex offender after he was convicted, at the age of 21, of taking indecent liberties with a minor. Six years after Packingham’s conviction, North Carolina enacted a law that made it a felony for registered sex offenders to access a variety of websites, from Facebook to The New York Times and YouTube. Packingham was convicted of violating this law after a police officer saw a Facebook post in which Packingham celebrated, and gave thanks to God for, the dismissal of a traffic ticket. The justices today agreed to review Packingham’s contention that the law violates the First Amendment.

Issue: Whether, under the court’s First Amendment precedents, a law that makes it a felony for any person on the state’s registry of former sex offenders to “access” a wide array of websites – including Facebook, YouTube, and nytimes.com – that enable communication, expression, and the exchange of information among their users, if the site is “know[n]” to allow minors to have accounts, is permissible, both on its face and as applied to petitioner, who was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring “God is Good!”

In Esquivel-Quintana v. Lynch, into an area of law called by Prof. Berman, as “crimmigration” – the intersection of immigration and criminal law. The petitioner in the case, Juan Esquivel-Quintana, was a lawful permanent resident of the United States in 2009, when he was charged with violating a California law that makes it a crime to have sexual relations with someone under the age of 18 when the age difference between the two people involved is more than three years; he had had consensual sex with his 16-year-old girlfriend when he was 20 and 21 years old. The federal government then sought to remove Esquivel-Quintana from the United States on the ground that his conviction constituted the “aggravated felony” of “sexual abuse of a minor.” The lower courts agreed with the federal government, but now the Supreme Court will decide.

The Army Court of Criminal Appeals has raised an interesting question and important reminder in United States v. Keen, decided 20 October 2016.  The court itself specified the following issue.

WHETHER THE MILITARY JUDGE ACTED AS COUNSEL OR LEGAL OFFICER AS TO ANY OFFENSE CHARGED OR IN APPELLANT’S CASE GENERALLY OR FORWARDED CHARGES IN APPELLANT’S CASE WITH A PERSONAL RECOMMENDATION AS TO DISPOSITION WHEN HE WAS CHIEF OF MILITARY JUSTICE AT III CORPS?

The facts supporting this issue were:

When I read that, I thought of “The Invisible War.”

Friend and forensic psychologist Reneau Kennedy sent an interesting piece across the transom today.  She forwarded a piece by Karen Franklin:

In the Dark” shines brilliant light on bungled Jacob Wetterling case

Good friend Gene Fidell has drawn attention to a news release about the new report.  In particular he notes that 23% of those surveyed last year would not recommend making a report.  The 2015 survey report is Enclosure 3.

Interestingly, last year nearly a number of respondents were dissatisfied with the various services available to a complaining witness.

Specifically, 80% of respondents were satisfied with overall services provided by the SVC/VLC during the military justice process, 74% of respondents were satisfied with the services provided by the UVA/VA, and 68% of respondents were satisfied with the services provided by the SARC. Across these individuals, less than 20% were actively dissatisfied with the services provided by the UVA/VA (19% dissatisfied) or SARC (17% dissatisfied). Few respondents were dissatisfied with the SVC/VLC program, which was the highest rated resource across all respondents (only 7% actively dissatisfied).

SCOTUSBlog has an interesting post about the court’s relist practice.  Some of us discussed the relist option when the court was considering the petition in United States v. Sullivan,  74 M.J. 448 (C.A.A.F. 2015) cert. denied.

When last we wrote about the statistics of relists a little over a year ago, it was to report on what was then a new trend: the court’s practice of routinely relisting petitions that are under serious consideration for review at second or subsequent conferences prior to entering orders granting or denying certiorari. The practice is by now an accepted feature of the certiorari process, and at least one relist is generally viewed as a necessary step on the way to a grant of further review. Here, we offer an update on the statistics of relists. Focusing on October Term 2015, we highlight some emerging trends in what appears to be an evolving practice.

Regrettably, on 3 October 2016 the court declined to take Captain Sullivan’s petition.