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By order of the Chief Judge, the United States Court of Appeals for the Armed Forces will be closed all day on Monday, July 3, 2017.  For purposes of computation of time and motions to enlarge time under the Court’s Rules of Practice and Procedure, July 3, 2017, will be considered a day when the Court is officially closed.  While not a preferred status, you have an extra day if butting up against the due date.

In 2002, Lester Packingham became a convicted sex offender at the age of 21, after he pleaded guilty to taking indecent liberties with a child – having sex with a 13-year-old girl. Packingham got into hot water with the law again in 2010, when he posted on Facebook to thank God for having a traffic ticket dismissed. After a police officer saw his post, Packingham was prosecuted and convicted under a North Carolina law that makes it a felony for a convicted sex offender to use social-networking websites, such as Facebook and Twitter, that allow minors to create accounts. Today Packingham has something else to be grateful for, and he can take to social media to express that appreciation because the Supreme Court agreed with him that the North Carolina law violates the Constitution’s guarantee of freedom of speech.

So writes Amy Howe on SCOTUSBlog, about Packingham v. North Carolina.

I have discussed before how very difficult it is for an appellant to get a federal court to review and overturn a court-martial conviction.

Here is Randolph v. United States, a federal circuit case reviewing an attempt to get relief via the Court of Federal Claims.

The United States Department of the Navy (Navy) dishonorably discharged Jerome Randolph, the pro se appellant, after a court-martial convicted him for sexual assault and falsifying a statement about that assault. After this discharge, Mr. Randolph repeatedly sought expungement of his court-martial conviction, as well as an award of back pay and an upgraded discharge status, before the Board for Correction of Naval Records (Board). The Board denied him any relief. He ultimately filed suit against the United States (government) in the United States Court of Federal Claims (Claims Court) seeking the same relief he sought from the Board, as well as claiming relief from defamation. The Claims Court concluded that, in light of his court-martial conviction, the Board reasonably refused to award him back pay and upgrade his discharge status. The Claims Court also held that it had no jurisdiction to expunge his court-martial conviction or to proceed with his defamation claim. Even after we broadly construe Mr. Randolph’s arguments on appeal, we affirm.


It is essential that this parallel military justice system be seen as fair, just, [Constitution] compliant, and operating effectively, both at home and abroad. I note in passing that the civilian justice system also provides for extraterritorial jurisdiction in several contexts. However, unlike the civilian justice system, the extra-territorial reach of the parallel military justice system is essential to its daily operations: persons subject to the CSD are regularly required to serve abroad and complete overseas assignments or training exercises in international or foreign territories.

This parallel system of military justice is not a fossilized system of law. It is subject to the [Constitution] and was subject to tremendous change and adaptation even before the Constitution’s enactment.

And now we diverge–back to Canada.

David F. Jacobs, Fifth Amendment in the Digital World, 43 THE REPORTER 2 (2017). This should be read considering the recent Air Force Article 62, UCMJ, appeal in United States v. Blatney, Misc. Dkt. No. 2016-16 (A.F. Ct. Crim. App. 22 May 2017) (unpub.). In Blatney the OSI gained consent to search the accused’s phone and also had him agree to “unlock” the phone.  See also, United States v. Robinson, No. ACM 38942 (A.F. Ct. Crim. App. 15 May 2017)(unpub.).

Bradford D. Bigler, Rebalancing Military Sentencing: An Argument to Restore Utilitarian Principles Within the Courtroom. 225 MIL. L. REV. 1 (2017). This should be read after doing some reading on restorative justice.  I have for some years been advocating with SJA’s and convening authorities a pretrial agreement more focused on the principles of restorative justice.  In that vein, I have had some success in obtaining some creative agreements.  The simplest has been direct restitution to the victim or complaining witness.  As an example, the payment of a significant dollar amounts directly to the victim—as restitution.  Such agreements must be negotiated through the SJA and commander to avoid ethical issues by dealing directly with the victim.  I have also seen a case or two where the client was accused of obstructing justice by seeking to negotiate their own resolution with the alleged victim—this is a critical concern in the messy divorce and child custody case.

Have a case with these issues?  Give me a bell (a British expression for a phone call) at 703-298-9562 or drop an eMail to

The Army Court of Criminal Appeals has decided the case of United States v. Heath, adverse to the appellant.  The question to be resolved “is whether SPC XX’s testimony was admissible as a prior consistent statement.”

The case has a fairly sparse discussion but worth reading because of its resolution of an evidentiary issue under the new Mil. R. Evid. 801.  The court applied the “Tipsy Coachman Doctrine” to find the military judge arrived at the correct result, even if for the wrong reason.  The TCD is explained more fully in United States v. Carista, 76 M.J. 511 (Army Ct. Crim. App. 2017).

The principle is sometimes referred to as the “tipsy coachman” doctrine. See, e.g., Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002) (“This long-standing principle of appellate law, sometimes referred to as the ‘tipsy coachman’ doctrine, allows an appellate court to affirm a trial court that ‘reaches the right result but for the wrong reasons’ so long as ‘there is any basis which would support the judgment in the record.'”) (citation omitted). Georgia Supreme Court Justice Bleckley quoted Oliver Goldsmith’s 1774 poem, Retaliation, to illustrate the concept.

The state of Maryland is no longer pursuing sexual assault charges against two teenagers who were accused of dragging a 14-year-old girl into the bathroom of Rockville High School and raping her.

The accused students, 18-year-old Henry Sanchez Milian and 17-year-old Jose Montano, are reportedly immigrants who entered the U.S. illegally. That made them people of great interest for foes of illegal immigration: Right-leaning pundits cited the pair as evidence that our schools were threatened by armies of illegal immigrant rapists.

Now the case against the two teens has collapsed. According to The Washington Post:

Last year we took up the appeal of an Army sergeant. After reading the record of trial, I went to meet with the client at the JRCF, Fort Leavenworth, KS to hear from him.  (I make every effort to visit an appellant client in person.) We investigated and interviewed witnesses to develop a case of ineffective assistance of the military defense counsel.

We filed our brief asking for a Dubay hearing to investigate the claims.  The Army court ordered a Dubay hearing. A Dubay hearing is uncommon.  The Order is here.

We represented the client at the Dubay hearing.  The military judge issued his findings of fact and conclusions of law (which are here)