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It looks like CAAF is ready to give us their interpretation and applications of MIL. R. EVID. 801(d)(1)(B)(i) AND 801(d)(1)(B)(ii). Yesterday, CAAF granted in the following cases.

No. 20-0006/NA. U.S. v. Matthew D. Norwood. CCA 201800038. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

I. WHETHER THE MILITARY JUDGE ERRED IN ADMITTING, OVER DEFENSE OBJECTION, THE ENTIRE VIDEO-RECORDED INTERVIEW OF THE COMPLAINING WITNESS UNDER MRE 801(d)(1)(B)(ii) AS A PRIOR CONSISTENT STATEMENT.

You have heard me speak of secondary gain; a term used by psychologists which we lawyers call motive to lie. There are several motives to lie, United States v. Wetuski, AFCCA, presents two–to get out of trouble and to get an expedited transfer.

Given the timing of A1C ME’s removal from military justice and the closeout of her LOR, trial defense counsel attempted to show A1C ME had motive to misrepresent her accusations against Appellant. In trial defense counsel’s view, A1C ME was dissatisfied with her current situation in the Malmstrom AFB legal office and needed an expedited transfer to get a fresh start and the way to do that was to accuse Appellant of sexual assault. Several members of the legal office testified that they heard A1C ME say once, in the months before her accusations against Appellant, that a group of female Airmen who lived in the dormitories at Malmstrom AFB knew what they needed to say and to do to get an expedited transfer. One of those witnesses explicitly stated that what needed to be done was “you have to have an unrestricted sexual assault report and see the [Sexual Assault Response Coordinator].” This witness opined that

this was “not very” hard. Members of the legal office believed there was an increase in outgoing expedited transfers from Malmstrom AFB during the winter of 2016–2017.

From time to time I bring attention to a civilian case that may be of interest to practitioners. Mostly these are post-CAAF cases arising from the USDB. So today I have Coleman v. Commandant., decided 22 November 2019, in the USDC Kansas.

This matter is a pro se petition for habeas corpus filed under 28 U.S.C. § 2241. Petitioner was granted leave to proceed in forma pauperis. Because Petitioner is confined at the United States Disciplinary Barracks in Fort Leavenworth, Kansas, this matter was transferred to this Court from the District of North Dakota. Petitioner seeks to set aside his 2012 conviction by general court-martial, based on the holdings in United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016) and United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017).

Petitioner, a former active duty member of the United States Air Force, was tried in September 2012 by general court-martial at Minot Air Force Base, North Dakota. Contrary to his pleas, Petitioner was convicted of one specification of rape, three specifications of aggravated sexual assault, and one specification of forcible sodomy, in violation of Articles 120 and 125 of the Uniform Code of Military Justice (“UCMJ”), 10 U.S.C. §§ 920, 925. Petitioner was sentenced to a dishonorable discharge, confinement for twelve years, forfeiture of all pay and allowances, and a reduction to the grade of E-1. On March 1, 2013, the convening authority approved the sentence.

No. 19-0467/AR. U.S. v. Charles E. Robinson III. CCA 20170536. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, we note that the sentence affirmed by the lower court appears not to conform to the terms of the pretrial agreement. In accordance with C.A.A.F. Rule 30A, it is appropriate for the Court of Criminal Appeals to consider this issue initially. Accordingly, it is ordered that said petition is granted on the following specified issue:

WHETHER THE CCA ERRED IN AFFIRMING A SENTENCE TO CONFINEMENT FOR LIFE WITHOUT PAROLE WHERE THE PTA PROVIDED THAT THE CONVENING AUTHORITY WOULD DISAPPROVE ALL CONFINEMENT IN EXCESS OF 25 YEARS.

The decision of the United States Army Court of Criminal Appeals is affirmed as to findings but set aside as to sentence. The case is returned to the Judge Advocate General for remand to the Court of Criminal Appeals for further review under Article 66, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866 (2012). Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2012) shall apply.

Eve Brensike Primus, Disaggregating Ineffective Assistance of Counsel Doctrine: Four Forms of Constitutional Ineffectiveness. 72 STANDFORD L. REV. x (2020).

For years, experts have blamed Strickland v. Washington’s lax standard for assessing trial attorney effectiveness for many of the criminal justice system’s problems. But the conventional understanding of Strickland as a problem for ineffectiveness claims gives Strickland too much prominence, because it treats Strickland as the test for all such claims. That is a mistake. Properly understood, the Supreme Court has recognized four different constitutional forms of trial attorney ineffectiveness, and Strickland’s two-pronged test applies to only one of the four. If litigants and courts would notice the complexity and relegate Strickland to its proper place, it would pave the way for meritorious ineffectiveness claims of the other three kinds. This Article disaggregates strands of Sixth Amendment doctrine that others have jumbled together so as to enable courts and litigants to confine Strickland to its proper domain and use more appropriate analyses elsewhere.

The Article also explains why additional disaggregation is necessary within the category of cases where Strickland rightly applies. Implicitly, the Supreme Court has created not one but three tests for assessing deficient performance within that domain, and it has indicated a willingness to soften the outcome-determinative prejudice prong as well. Failure to recognize these different forms of Strickland ineffectiveness has made the test seem much harder for defendants to satisfy than needs to be true. Recognizing these complexities, and applying the right test in the right case, is necessary if individual defendants are to be treated fairly and systemic constitutional problems in the provision of indigent defense services are to be addressed.

Anyone raising a UCI motion must be familiar with the Third Army cases and those that follow.

United States v. Thomas, 22 MJ 388 (C.M.A. 1986)cert. denied479 U.S. 1085 (1987)see also United States v. Levite, 25 MJ 334 (C.M.A. 1987).

Checkout United States v. Newbold, 45 M.J. 109 (C.A.A.F. 1996).

A British article worth reading because it has application here. Akorede Omotayo, The Right to Silence – or the presumption of Guilt

The right to silence is thought by many Judges and academics to be a constitutional right; which preserves Viscount Sankey’s presumption of innocence in Woolmington . For this reason, the legislative changes to a defendant’s right to silence, brought about by sections 34-38 of the Criminal Justice and Public Order Act 1984, represented one of the most controversial reforms of English criminal law in the last century.

Prior to the CJPOA, no evidential significance could be attached to an accused’s exercise of the right to silent, save when the accused and the victim were on even terms.  However, the provisions in the CJPOA, particularly ss 34-35 have sought to alter this principle to the extent that the question that this article grapples with, is whether the right to silence, despite the changes, is still useful in protecting an accused’s supposed ‘constitutional right’ of innocence, until proven guilty.

United States v. Scott., ordering a Dubay hearing. I could not find a subsequent opinion on the ACCA website, which could mean the Dubay hearing produced nothing noteworthy and the court proceeded to affirm the findings and sentence.

CAAF has granted the following issue:

No. 19-0365/AR. U.S. v. Jason A. Scott. CCA 20170242. 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 granted on the following issue:

We have had a number of military cases of the years involving searches of lawyer “files” or other materials.

Here is an interesting opinion from the Fourth Circuit about “taint teams.” The Fourth is not generally known as a defense friendly court.

4th Circuit Court of Appeals Opinion 31 October 2019

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