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A press release alerts us to several proposals for the NDAA FY 2023 which could affect military justice. One addresses Supreme Court access (something NIMJ has long advocated for), and another is the question of unanimous verdicts post-Ramos v. Louisiana. A third addresses a suspect’s records (and their removal) when “Service member is subject to non-judicial punishment for the offense to which the record pertains; or is pardoned for the offense to which the record pertains.” You can find the House Armed Services Committee actions here. We get many requests from persons who want to have criminal records expunged when their case is not referred to court-martial but is dealt with by Article 15 (NJP) or administrative discharge. These records often wrongly suggest the person was “convicted.” They also can be retrieved by current and future employers when making a hiring decision. So, the “Titling” of a subject on MCIO investigation can be affected for the rest of their life, even when not convicted of something.

Courtesy GMJR.

For those following the ongoing litigation in Dial, here is a link to the current status (18072022).

Probably not successfully based on AV2 v. McDonough, No. 22-369, 2022 U.S. Dist. LEXIS 72609 (D.D.C. April 20, 2022) and E.V. v. Robinson, 906 F.3d 1082, 1086 (9th Cir. 2018) certiorari den. 140 S.Ct. 501, 205 L. Ed. 2d 316 (2019).

In each of these cases, a military judge had granted discovery of mental health information that the alleged victims claimed was protected by Mil. R. Evid. 513, in other words, the military judge was wrong. They had sought relief from the Court of Criminal Appeals and from the Court of Appeals for the Armed Forces without success.

The basis for seeking a writ was essentially that

Well, calls for change to the new changes for the prosecution of sex crimes have already begun. During the Conference over the NDAA FY 22, sexual harassment was removed from the list of covered offenses under the jurisdiction of a special trial counsel (STC). But, the President was tasked to enumerate an offense of sexual harassment under UCMJ art. 134. The President did so (along with other changes) in Executive Order 14062, of January 26, 2022, Annex at 21.

  • (1) That the accused knowingly made sexual advances, demands or requests for sexual favors, or knowingly engaged in other conduct of a sexual nature;
  • (2) That such conduct was unwelcome;

Does the defense in a court-martial under the Uniform Code of Military Justice (UCMJ) have to give discovery about your defense to the prosecution? Yes, sometimes.

There are several rules set out in the Manual for Courts-Martial that your military lawyer or civilian defense counsel knows about. The rules are contained in Rule 701.

Special defenses.

Last year the Committee on Rules of Practice and Procedure Judicial Conference of the United States requested public comment on proposed changes to several rules of evidence. On page 299 of the request, you will find the proposed evidence rules. We are most interested in Rule 702, which deals with experts and expert testimony.

The Daubert case was an effort to make the trial judge the gatekeeper of expert testimony to make sure it was reliable and relevant. However, the military appellate courts adopted Daubert and added their factors to consider over time. From this, we, or your military defense lawyer, will make Houser motions from time to time. United States v. Houser, 36 M.J. 392 (C.A.A.F. 1993) sets out six factors a judge should use to determine the admissibility of expert testimony.

  • Qualified Expert. Expert witness must qualify as an expert because of some special knowledge, skill, experience, training, or education. See e.g., United States v. Roach, __ F. 3d ___ (8th Cir. 2011). Eighth Circuit noted Rule 702 does not rank academic training over demonstrated practical experience. An individual can qualify as an expert where he possesses sufficient knowledge gained from practical experience, even though he may lack academic qualifications in the particular field of expertise.

February 14, 2022, U.S. v. E-3, United States Air Force, Sheppard Air Force Base, Texas.  Airman is accused of sexually assaulting two different Air Force enlisted women and is placed into pretrial confinement.  After being retained to defend the Airman, Mr. Freeburg is able to show through numerous witness interviews that there were serious issues with one accuser’s story and that the other accuser had only made her allegation after she was caught committing adultery with a different Airman.  After extensive litigation, the Air Force agrees to a Chapter 4 discharge instead of court-martial.
Result: No Federal Conviction, No Sex Offender Registration, No Dishonorable Discharge.
Great effort by partner Nathan Freeburg.

In United States v. Ferreira. ARMY MISC 20220034 (A. Ct. Crim. App. Jan. 28, 2022) The government has filed for and received a stay of proceedings in this case based on the military judge’s decision in United States v. Dial,” that he will instruct the jury that they must have a unanimous vote for guilty to any of the charges.

The government has petitioned for a Writ of Prohibition as they have done in Dial. Here is a link to the government’s petition filed in United States v. Dial, ARMY MISC 20220001 (A. Ct. Crim. App. Jan. 4, 2022).

In 1775, the Second Continental Congress adopted the British Articles of War for the Continental army. The Articles did not require unanimous verdicts in courts-martial findings. That a military jury can find a service member guilty with less than unanimous votes remains the law. That law now conflicts with the law in all U.S. jurisdictions since the Supreme Court decided the case of Ramos v. Louisiana in 2020.

Over the last several years, I have noticed quite a few cases on appeal challenging improper arguments made by the prosecutor. Here is a short burst on a recent approach I have taken.

Standard of review

            Prosecutorial error in making an improper argument is a legal question reviewed de novo. If there is no object to the errors, this Court applies a ‘plain error” standard of review. An appellant must show “(1) there is an error, (2) the error is plain or obvious, and (3) the error results in material prejudice to a substantial right of the accused.” United States v. Sewell, 76 M.J. 14, 18 (C.A.A.F. 2017); United States v. Erikson, 65 M.J. 221 (CA.A.F. 2007); United States v. Fletcher, 62 M.J. 175 (C.A.A.F. 2005).

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