Appeals Category Archives — Page 3 of 5 — Court-Martial Trial Practice Blog Published by International Military Lawyer

UCI in the jury box

February 5, 2018 | The Law Office of Philip D. Cave

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. “

Appellate deadlines and deadlines

November 10, 2017 | The Law Office of Philip D. Cave

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.

I quote

November 10, 2017 | The Law Office of Philip D. Cave

Are there perils in statutory interpretation at trial or on appeal

October 20, 2017 | The Law Office of Philip D. Cave

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.

Two CAAF cases to watch

October 14, 2017 | The Law Office of Philip D. Cave

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.

Government appeals

September 15, 2017 | The Law Office of Philip D. Cave

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.)

No, sorry

June 17, 2017 | The Law Office of Philip D. Cave

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.

Double jeopardy

March 12, 2017 | The Law Office of Philip D. Cave

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.

Deathly news

December 26, 2016 | The Law Office of Philip D. Cave

CBS news has picked up this:

A former Fort Bragg soldier who killed four women and raped others more than 25 years ago is again headed for execution.

The Fayetteville Observer reports Ronald Gray last week lost a battle to keep in place a federal court’s order issued eight years ago blocking his execution.

Appellate (and trial) advocacy

October 29, 2016 | The Law Office of Philip D. Cave

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).