Articles Posted in Appeals

During trial, the defense counsel make many decisions; sometimes there is an objection to evidence, sometimes not.  How the appellate courts deal with allegedly inadmissible evidence depends on whether there was an objection at trial.

If there is an objection the appellate court looks to see if the evidence was objectionable, whether the judge abused his discretion in overruling the objection, and if the error was harmful or harmless (prejudice).

If there is no objection the appellate court may apply the plain error rule.

Since United States v. Hills, and then United States v. Hukill, the appellate courts have been trying to sort out quite a few cases on remand.  Here is a list of the most recent CAAF actions.

No. 18-0087/AF. U.S. v. Jonathan P. Robertson. CCA 39061. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and in light of United States v. Guardado, 77 M.J. 90 (C.A.A.F.2017), it is ordered that said petition is hereby granted on the following issue:

WHETHER THE UNCONSTITUTIONAL PROPENSITY INSTRUCTION IN THIS CASE WAS HARMLESS BEYOND A REASONABLE DOUBT.

According to SCOTBlog:

The question of how to count the votes of the justices to decide who won a Supreme Court case – and on what ground – when the court is splintered has baffled lower courts for years. The rule laid out in Marks v. United States purports to answer that question: “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by the Members who concurred in the judgment on the narrowest grounds.”

As a practical matter, the Marks rule has compounded rather than cured the confusion surrounding plurality precedent. Yet time after time when the Supreme Court has been confronted with an opportunity to clarify or abandon the Marks rule, it has failed to do so. More often than not, the court simply ignores the rule entirely, leaving lower courts in a hapless interpretative state each time the Supreme Court hands down a plurality decision. This could all change when the court decides Hughes v. United States, which is scheduled for argument on March 27.

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.

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. “

It is always good to file or submit petitions and pleadings on time.  Sometimes the due date can be complicated.

Let’s say your due date falls on a Sunday?  A federal holiday?  Or???  Here is a thought from friend and colleague Dew Process.

CAAF, in its decision in United States v. Rodriguez, 67 M.J. 110 (CAAF), cert. denied 558 U.S. 969 (2009).  The majority in Rodriguez held that the 60 day time-limit in Article 67(b), UCMJ, was jurisdictional and rejected the long-standing precedent of this Court essentially adopting the “equitable tolling” principle. The Rodriguez majority based its decision on Bowles v. Russell, 551 U.S. 205 (2007), a federal civil appeal in a habeas corpus action.

Trial and appellate lawyers often need to interpret what a statute means and how it applies to their case.

“There are some great Supreme Court cases on statutory interpretation, including the famous discussion regarding whether a tomato is a fruit.”

Says Prof. Tessa Dysart on Appellate Advocacy Blog.  She is referring to Nix v. Hedden, 149 U.S. 304 (1893), which held that “under customs law tomatoes counted as vegetables — and the importer had to keep paying the tariff.”  Her post is referring to State v. Barnes, decided 12 October 2017, by the Washington Supreme Court.

On 12 October 2017, the CAAF granted petitions worthy of watching:

No. 17-0556/AR. U.S. v. Joseph R. Armstrong. CCA 20150424. 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 ASSAULT CONSUMMATED BY A BATTERY IS A LESSER INCLUDED OFFENSE OF ABUSIVE SEXUAL CONTACT BY CAUSING BODILY HARM.

Under Article 62, UCMJ, the prosecution can appeal a military judge’s trial ruling under six circumstances.  The two most common are:

(A) An order or ruling of the military judge which terminates the proceedings with respect to a charge or specification.

For example, a military judge dismisses a specification because the specification fails to state an offense.  That is what happened in United States v. Schloff.  The government appealed, the ACCA decided the appeal in favor of the government, CAAF agreed with the ACCA, and the Supreme Court declined to issue a writ of certiorari.  (We are now in the traditional Article 66, UCMJ, appeal before ACCA on the sole specification for which there was a conviction.)