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A year ago an O-4 client was accused of various physical assaults on his son over an eight-year period.  He faced two charges with a total of 10 specifications.  Prior to trial we were able to identify very helpful information about the credibility of the allegations, despite there being medical evidence and prosecution expert testimony.  Prior to trial, one charge was dismissed and we proceeded to a jury trial on one charge and eight specifications.  The judge made a ruling close to the end of the prosecution case and the case was delayed several months while to prosecution appealed the judge’s ruling.  After the appeals court denied the prosecution appeal we continued the trial.  At the end of the prosecution case, the judge entered a finding of not guilty on three of the eight specifications.  At issue overall was whether the alleged acts happened, or if there were some minor acts that were exaggerated and the doctrine of parental discipline.

(A motion for a finding of not guilty is usually very easy for the prosecution to overcome because all they have to show is that there is some evidence upon which a rational jury can decide–a very low standard; and the judge isn’t allowed to make credibility evaluations.)

After all the evidence was submitted, instructions were given, and arguments were made–the members deliberated for about 3.5 hours.  They returned a finding of guilt as to one of the remaining five specifications.  After a sentencing hearing, the jury announced a sentence of “No Punishment.”  In the military, this is an approved “sentence” and effectively means that the consequences of a conviction alone are likely considered sufficient to hold the person accountable and promote rehabilitation.


We all know that military defense counsel is required to advise a client of potential sex offender registration issues since United States v. Miller, 63 M.J. 452, 458-59 (C.A.A.F. 2006).

With that in mind, United States v. Toth, No. 201700014 (NMCCA 28 February 2018) is worth the read.

In Toth, the appellant alleged he was misadvised in his guilty plea by his defense counsel that he would not have to register as a sex offender and that his counsel were ineffective for that reason.  At trial

We know that the Sixth Amendment right to confront witnesses does not apply at a sentencing hearing (although the Due Process Clause does).  Here we have a report of United States v. Carrillo, 2018 U.S. Dist. LEXIS 21731 (E.D. N.Y. Feb. 9, 2018), in which the judge held that the exclusionary rule does not apply at sentencing.  The district court judge cited to United States v. Tejada, 956 F.2d 1256, 1263 (2d Cir. 1992).

I’m used to having some media interest in my cases or being asked to comment on someone else’s.  With that in mind, I try hard to be careful on staying within bounds of what can be said or which can but shouldn’t.

The 48th Criminal Law Seminar for VACLE has this module.

Trial Publicity, Social Media, and Case Commentary: Can Litigating in the Court of Public Opinion Get Lawyers into Trouble?

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”)).