Articles Posted in New Cases

An accused in pretrial confinement awaiting trial receives day for day credit toward any sentence to confinement. In the old days, we referred to that as “Allen credit.”

Note, an accused may not automatically get credit for time spent in civilian jail–that needs to be litigated at trial. See United States v. Harris, __ M.J. ___, 2019 CAAF LEXIS 361 (C.A.A.F. 2019).

Which brings us to United States v. Howell, NMCCA, 2019. On appeal, Howell argued that the prosecution wrongly argued to nullify his pretrial confinement credit.

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As I have argued, for some time in courts-martial, sex offender registration is effectively a punishment in today’s society–despite what legislators and courts say.  Well, now we have an interesting decision from the Pennsylvania Supreme Court, in a 3-1 decision, about ex post facto changes to SOR.

[T]he provisions of the state’s sex offender registration law (SORNA) [are] unconstitutional under the state and federal constitutions, according to the majority in Commonwealth v. Muniz held that 1) SORNA’s registration provisions constitute punishment notwithstanding the General Assembly’s identification of the provisions as nonpunitive; 2) retroactive application of SORNA’s registration provisions violates the federal ex post facto clause; and 3) retroactive application of SORNA’s registration provisions also violates the ex post facto clause of the Pennsylvania Constitution.

The bottom line here for me is that various courts are now holding that SOR is punitive.  I argue that as the reason an accused should be able to raise SOR requirements in sentencing and that the members should not be given a “Talkington” instruction.

In United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016), the Court of Appeals for the Armed Forces decided that–

[B]ecause the evidence of the charged sexual misconduct was already admissible in order to prove the offenses at issue, the application of Military Rule of Evidence (M.R.E.) 413 — a rule of admissibility for evidence that would otherwise not be admissible — was error. Neither the text of M.R.E. 413 nor the legislative history of its federal counterpart suggests that the rule was intended to permit the government to show propensity by relying on the very acts the government needs to prove beyond a reasonable doubt in the same case.

M.R.E. 413 otherwise allows the prosecution to introduce evidence of other similar sexual offenses to “prove” a pattern of sexually assaultive behavior.  It’s profile evidence (and it’s wrong, but the law allows it).  Hills was a members case!  As a consequence, the trial and lower appellate courts were limiting Hills to members cases only and refused to apply Hills to judge alone cases–until–

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The Court of Appeals for the Armed Forces has decided United States v. Wilson, __ M.J. __, No. 16-0267/AR, for the appellant.  The issue was:

Whether the military judge erred in denying the defense motion for appropriate relief under Rule for Court-Martial 917 where the military judge improperly applied Article 130, housebreaking, to a motor pool.

A unanimous court found that the military judge erred.

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The NMCCA has issued two significant opinions this week, one of which is worth the read while the United States prosecution of Bowe Bergdahl continues.

United States v. Solis, __ M.J. ___ (N-M Ct. Crim. App. 2016).  The case presents discussion of continuing issues relating to the nature of the proof and member (jury) instructions in military sexual assault cases.  These types of cases, especially where alcohol is involved present complex challenges to the military defense counsel.

  1. Article 120(b)(3)(A) of the UCMJ is unconstitutional because the language “incapable of consenting to the sexual act because she was impaired by . . . alcohol” is unconstitutionally vague.

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In United States v. Mercier, __ M.J. __, No. 20160318 (C.G. Ct. Crim. App. Mar. 18, 2016) the court denied a Government interlocutory appeal of a military judge’s ruling that found that a specification was improperly referred and dismissed the specification without prejudice.

This would seem to be a perfect opportunity to take up, again, two suggested improvements to military law practice.

Let’s have the President issue an Executive Order.  The Attorney General of the United States issues several manuals for U. S. Attorneys.  This is guidance from HQ intended to assure some measure of uniformity among the U. S. Attorney offices throughout the nation.  It is time to impose something akin to the U. S. Attorney’s Manual by executive order (in particular, 9-27.000 – Principles Of Federal Prosecution)?

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Can the actions of military prosecutors raise the specter of Unlawful Command Influence?

Maybe.

That conclusion can at least can be gleaned from the case of United States v. Garcia, decided in 2015 by the Army Court of Criminal Appeals.  (United States v. Garcia, No. 20130660, 2015 CCA LEXIS 335 (A. Ct. Crim. App. August 18, 2015)[ https://www.court-martial-ucmj.com/files/2016/03/USvGarcia.pdf].

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The interesting case of West v. Rieth, et. al. has come across the transom and it’s worth the read.

West alleges that the Federal Defendants, who with one exception were also U.S. Marine Corps service members at all relevant times, conspired to lodge false complaints and accusations of sexual harassment and sexual assault against him. According to the complaint, such false allegations were personally motivated by a desire to remove West and another individual from their supervisory positions and to obtain favorable transfers.[3]Investigations ensued, and West was court-martialed with respect to the allegations lodged by Rieth, Parrott, and Allen. The allegation that West raped defendant Johnson was not part of the court-martial because an investigator found that such allegation was not credible.[4]

At the court-martial in November 2014, defendants Rieth, Parrott, and Allen testified under oath against West, which testimony West alleges was false.

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It is routine for military prosecutors to overcharge in courts-martial.  They feel the more they can pile on the worse it makes the accused look.  So that’s why you might see a charge of murder along with a charge of spitting on the side-walk.

One of the areas of frequent abuse is the use of inchoate crimes – primarily here conspiracy.  The Army Court of Criminal Appeals has just issued an opinion in a case I defended at trial a couple of years ago.  The case was tried in 2012, and the first stage of appeal was decided in February 2015.  The next stage is CAAF.

In United States v. Willis, we had objected at trial to a conviction on multiple conspiracies, but the trial judge denied our motion.  The prosecution had it’s way in overcharging on this issue.  But that didn’t pass muster with the appeals court.  In ruling for the defense the court repeated basic principles.

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