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United States v. Hennis.

Appellant’s case is before this Court for mandatory review under Article 67(a)(1), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 867(a)(1) (2012). Appellant has filed a consolidated motion requesting, in relevant part, appointment of appellate defense team members pursuant to the Army’s capital litigation regulation, as well as funding for learned counsel, a mitigation specialist, and a fact investigator.  We conclude that this Court does not have the constitutional, statutory, or regulatory authority to provide Appellant with the relief he seeks. Accordingly, we deny Appellant’s motion.

Today, SCOTUSBlog tells about some grants and denials.  One may be of interest to military justice practitioners.

they denied review in an Alabama death-penalty case, over a lengthy dissent by Justice Sonia Sotomayor that was joined by Justices Ruth Bader Ginsburg and Elena Kagan. . . . That order drew a sharp 14-page dissent[.]

Here is a link to the order.

From CAAF Daily Journal of 2 November.

No. 17-0507/AR. U.S. v. Orval W. Gould, Jr. CCA 20120727. On further consideration of Appellant’s certificate for review and the briefs of the parties, it is ordered that the first and second certified issues are answered in the negative, and therefore, no answer is provided to the third certified issue because to do so would require issuing an advisory opinion. The decision of the United States Army Court of Criminal Appeals is affirmed.

Here is the ACCA opinion in Gould.  The case has a long and convoluted history.

Andrew McCarthy writes in National Review about the recent NY terror case and President Trump’s off-the-cuff comments.  In a well-reasoned piece, he makes the following point.

Yet, just as law-enforcement officials must respect the policy judgments of their political superiors, the political authority must respect the need for independent administration of justice in individual cases. The president undoubtedly has the power to interfere in criminal cases that are brought under his authority. He abuses that power, though, when he fails to affirm the rule of law and the public integrity of the judicial process.

The thought is equally applicable to other politicians and government leaders, and here I’m thinking of the connection to comments about military sexual assault issues and cases.  Of course, the legislature has a duty to protect society, identify what should be considered criminal conduct, and set out a process for holding criminals accountable to society.  But in the process, their oath of office requires them to “affirm the rule of law and the public integrity of the judicial process.”  When people decide that the law or its application is unfair (rightly or wrongly) disrespect for the law follows.

Other circuits have held that a prisoner may file a petition for a writ of habeas corpus if his sentencing court has been dissolved.” Id. at 1093 (quoting Prost v. Anderson, 636 F.3d578, 588 (10th Cir. 2011) (explaining that, for military prisoners, “the resort to § 2241 is the norm rather than the exception . . .

due to the evanescent nature of court-martial proceedings:

the sentencing court literally dissolves after sentencing and is no longer available to test a prisoner’s collateral attack”)).

I have noticed an increase is improper prosecution arguments over the last five years — connected I think to sexual assault cases mostly.  So here is an article of interest.

Combating Prosecutor Misconduct in Closing Arguments, Oklahoma Law Review, Vol. 70, No. 3, Forthcoming

From the abstract:

Yes, it is.  In dissenting to the Coast Guard Court of Criminal Appeals majority opinion in United States v. Decker, the dissenting judge says:

This is a vexing case; the kind that sexual assault prevention training seeks to avoid. I agree with the majority’s resolution of Assignment of Error III, and I agree that the evidence presented in this case is legally sufficient to support findings of guilty to the specifications of Charge I and to Charge I. I would disapprove the findings of guilty to the specifications of Charge I and to Charge I, because I have a reasonable doubt that CG was incapable of consenting to the sexual act due to impairment by alcohol or any other substance; or unconscious, or otherwise unaware that the alleged sexual act was occurring. Considering all of the evidence presented, it is just as likely that CG was conscious, aware, and capable of consenting, but does not remember because of an alcohol-induced blackout.

Exactly!  I would suggest that 90% of military sexual assault cases involve both parties having drunk alcohol and claiming a lack of memory or ‘I was too drunk.’  The effects of an alcohol blackout on memory are well known and scientifically established.  What is also well known is that people in an alcohol blackout can still act and talk “normally” as perceived by others.  The dissenting judge’s discussion is a little more complex because of the way the offense was charged and the approach taken by the prosecution.

Crowder’s next orders took him to Fort Yates, North Dakota, where the United States Army attempted to suppress the religious Ghost Dance movement. While stationed at Fort Yates, Crowder proved successful in his legal defense in three court-martial proceedings. His actions were noted by Army superiors and after being promoted to the rank of captain, Crowder was reassigned to the Judge Advocate Generals Corps in 1895.

Says a piece in the Neosho Daily about Enoch Crowder.

BG Crowder is well known to historians of military justice for the sometimes contentious but always entertaining Ansell – Crowder dispute on military justice and see here.