Articles Posted in Appeals

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.)

The CAAF daily journal for 15 June 2017 has this entry:  No. 17-0003/AR. U.S. v. Christopher B. Hukill. CCA 20140939. On consideration of Appellee’s petition for reconsideration of this Court’s decision, United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017), it is ordered that said petition for reconsideration be, and the same is, hereby denied.

To refresh.

CAAF decided the Army case of United States v. Hukill, 76 M.J. 219, No. 17-0003/AR (slip op.), on Tuesday, May 2, 2017. A short opinion reiterates the rationale of United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) .  “[T]he use of evidence of charged conduct as M.R.E. 413 propensity evidence for other charged conduct in the same case is error, regardless of the forum, the number of victims, or whether the events are connected.” Slip op. at 6. CAAF reverses the decision of the Army CCA that found Hills inapplicable in judge-alone trials, reverses the appellant’s convictions, and authorizes a rehearing.

CAAF’s Daily Journal has this entry for 8 March 2017.

No. 17-0226/AF. U.S. v. Dorian K. Owens. CCA 38834. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE COURT OF CRIMINAL APPEALS VIOLATED APPELLANT’S FIFTH AMENDMENT RIGHT AGAINST DOUBLE JEOPARDY WHEN IT AFFIRMED A CONVICTION FOR THE LESSER-INCLUDED OFFENSE OF SEXUAL ASSAULT BY BODILY HARM, WHEN APPELLANT WAS CHARGED WITH THAT SAME OFFENSE AT TRIAL AND ACQUITTED BY A PANEL OF OFFICERS.

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