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The Court remanded United States v. Cabrera to NMCCA for additional review based on claims that the military judge should have been recused and that trial and appellate defense counsel were IAC for not raising that at trial or before NMCCA.

 The initial NMCCA opinion. In that opinion the only issues raised were a double jeopardy claim and a failure to state an offense claim. However, the interesting issues now are:

DID LTCOL KASPYRZK’S SUBSTANTIVE PARTICIPATION INAPPELLANT’S CASE WHILE SIMULTANEOUS LY ALLEGEDLYAPPLYING FOR EMPLOYMENT TO SERVE AS THE PROSECUTION’S EXPERT ADVISOR UNDERMINE THE PUBLIC’S CONFIDENCE IN THE JUDICIAL PROCESS?

18 U.S.C. § 1385—Posse Comitatus Act.

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

10 U.S.C. § 252—(Insurrection Act) Use of militia and armed forces to enforce Federal authority.

Lorrance v. Commandant.

This matter is a petition for habeas corpus filed under 28 U.S.C. § 2241, challenging Petitioner’s conviction by general court-martial. At the time of filing, Petitioner was confined at the United States Disciplinary Barracks in Fort Leavenworth, Kansas. This matter is before the Court on Respondent’s Motion to Dismiss (Doc. 10) in light of the Petitioner having received a Presidential Pardon. Petitioner has filed a Response (Doc. 13), and Respondent has filed a Reply (Doc. 14). The Court held a hearing on the motion on January 8, 2020, and took the matter under advisement. The Court, determining that Petitioner’s acceptance of the Pardon was an admission of his guilt leaving this matter without a case or controversy, finds that the motion should be granted.

Note the discussion of whether accepting an unconditional pardon not based on innocence is in fact and admission of guilt.

Wrestling with Legal and Illegal Orders in the Military in the Months Ahead

The Orders Project website is here along with a Sourcebook.

18 U.S.C. § 1385—Posse Comitatus Act.

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

10 U.S.C. § 252—(Insurrection Act) Use of militia and armed forces to enforce Federal authority.

A local paper has this,

Law enforcement officials and researchers caution that the registries play a limited role in preventing child sexual abuse and stress that most perpetrators are known to the child. The U.S. Department of Justice, which oversees the National Sex Offender Public Website, estimates that only about 10 percent of perpetrators of child sexual abuse are strangers to the child. The Justice Department estimates 60 percent of perpetrators are known to the child but are not family members but rather family friends, babysitters, child care providers and others, and 30 percent of child victims are abused by family members. Nearly a quarter of the abusers are under the age of 18, the department estimates.

In the current political climate, there’s lot of discussion about retirees being prosecuted for violating Article 88, UCMJ. Should that happen–an unlikely event we all hope, there appear to be at least three defenses if the alleged subject of the disrespect is the commander-in-chief.

1. The First Amendment. Yes, I know the courts give deference to regulations limiting a servicemembers right to free speech; but there could be exceptions.
2. There are two potential affirmative defenses; one is creative the other is grounded in military caselaw.

In United States v. Brickey,

[The court] granted review out of concern for the conduct of trial counsel in withholding from the defense certain information impacting upon both the credibility and the competence of a key prosecution witness to the offenses charged. After careful examination of the record and full consideration of the well-argued positions of the parties, we conclude that it was improper for trial counsel not to divulge this information and that the failure of trial counsel to bring this information to the attention of opposing counsel prejudiced appellant’s defense. Reversal of the convictions is therefore required.

United States v. Brickey, 16 M.J. 258 259 (C.M.A. 1983).

Army Times reports,

In the next two weeks, Army senior leaders expect to distribute a new policy governing how the absent without leave status is applied to a soldier who doesn’t report for duty, according to Army Chief of Staff James McConville.

I think not.

Whoever, being an officer of the Army or Navy, or other person in the civil, military, or naval service of the United States, orders, brings, keeps, or has under his authority or control any troops or armed men at any place where a general or special election is held, unless such force be necessary to repel armed enemies of the United States, shall be fined under this title or imprisoned not more than five years, or both; and be disqualified from holding any office of honor, profit, or trust under the United States.

18 U.S.C 592.