When [persnonnel] hear nothing but one side of controversial issues for their entire time[], what you have is not true education but Maoist indoctrination in the guise of education. When the academic consensus on any issue with political overtones can be predicted with 100% certainty merely by identifying the Politically Correct position, the consensus no longer means anything.
There is a conflict of opinion concerning the authority of this Court to reassess sentences. The language of Article 66(c), UCMJ, its legislative history, and the decision of the Supreme Court in Jackson v. Taylor, 353 U.S. 569, 1 L. Ed. 2d 1045, 77 S. Ct. 1027 (1957), give this Court the responsibility and unfettered authority to reassess a sentence, even after modifying the approved findings. On the other hand, our superior court holds that the service courts may only reassess a sentence after a finding of prejudicial error if the court was convinced that the sentence, as reassessed, is not greater than the sentence that the original court-martial would have imposed. United States v. Eversole, 53 M.J. 132 (2000); [11] United States v. Taylor, 47 M.J. 322, 325 (1997); United States v. Peoples, 29 M.J. 426 (C.M.A. 1990); United States v. Sales, 22 M.J. 305 (C.M.A. 1986); United States v. Suzuki, 20 M.J. 248, 249 (C.M.A. 1985). In United States v. Sills, 56 M.J. 556, 571 (A.F. Ct. Crim. App. 2001), set aside on other grounds, No. 02-0048/AF (15 Jan 2002), we analyzed these conflicting precedents, and HN8 concluded we are bound by the will of Congress and the decision of the Supreme Court. While the Manual for Courts-Martial gives this Court the authority to order a new hearing on sentence, it does not require us to do so. R.C.M. 810(a)(2) and 1203(c)(2).
United States v. Roper, 2002 CCA LEXIS 24, 10-11, 2002 WL 169256 (A.F.C.C.A. Jan. 24, 2002).
In United States v. Quick, 74 M.J. 517 (N-M. Ct. Crim. App. Oct. 31, 2014),[1] No. 15-0347/MC. CCA 201300341, (C.A.A.F. 30 January 2015),[2] the Judge Advocate General certified the following issue to the Court of Appeals for the Armed Forces (CAAF).
Observer Media asks:
When will they ever learn? Ninth Circuit Judge Alex Kozinski declared months ago in a much-quoted opinion that there is “an epidemic of Brady violations abroad in the land.” And yet, prosecutors continue to deny there’s a problem. Indeed, the Department of Justice gets outright indignant at the suggestion, and so do many state court prosecutors. They bristle at the very mention of the possibility.
But here’s another doozy: The People (of California) v. Efrain Velasco-Palacios. In this unpublished opinion from the Fifth Appellate District, the California Court of Appeal reveals that state prosecutors and California Attorney General Kamala Harris continue to be part of the problem. Kern County prosecutor Robert Murray committed “outrageous government misconduct.” Ms. Harris and her staff defended the indefensible—California State prosecutor Murray flat out falsified a transcript of a defendant’s confession.
United States v. D.W.B.
Unusual for me, but I did a guilty plea case this week.
Going in to the case and throughout the case the client was accused of a lot of offenses, some of which were a course of conduct over a period of time. Not unusual, right, so we had some right and left dates.
So, you are dealing with a government that takes the view you plead to this – X Y Z – or no deal. You get to the point where you say fine. You and the client take the deal.
Here are Army procedures in which they attempt to regulate “new” Article 32 hearings.
I’ll leave it to you to decide if they are:
Teaching point about SVC’s and how the defense may be able to use them to the benefit of the defense.
Not too long ago I had a SVC making oral argument on a MRE 412 motion.
During the course of the SVC presentation it occurred to me that she was representing facts AND statements of the complaining witness which were inconsistent with other statements of the complaining witness.
In August 2012, I noted a decision made by the Canadian court.
Canada has ordered the deportation of a female soldier who fled the U.S. military in order to avoid the war in Iraq, officials said Thursday. [Army Times]
In this day and age you’d wonder why all appellate decisions are not “published.” Many of not all are available either to lawyers through a research service or the general public through court websites. So what’s going on; some attention is being paid to the topic of unpublished opinions.
For the non-lawyer it is important to know, whether or not you understand it, that only “published” opinions are binding precedent on the lower courts, and a matter of stare decisis for appellate courts.
PrawfsBlawg reports:
No. 15-0347/MC. U.S., Appellant v. Christopher A. Quick, Appellee. CCA 20201300341. Notice is hereby given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this date on the following issue:
WHETHER PRECEDENT AUTHORIZING COURTS OF CRIMINAL APPEALS TO ORDER SENTENCE-ONLY REHEARINGS SHOULD BE OVERRULED BASED ON (A) JACKSON v. TAYLOR, 353 U.S. 569 (1957), WHICH STATED “NO [SUCH] AUTHORITY” EXISTS; (B) THE PLAIN LANGUAGE OF THE STATUTE INCLUDING THE CONJUNCTIVE “FINDINGS AND SENTENCE” IN ARTICLE 66(d) IN CONTRAST TO AUTHORITY GRANTED THE JUDGE ADVOCATES GENERAL IN ARTICLE 69(a) TO ACT WITH RESPECT TO “FINDINGS AND SENTENCE OR BOTH” AND THE CONVENING AUTHORITY IN ARTICLE 60(f)(3) TO ORDER SENTENCE REHEARINGS; AND (C) JUDICIAL ECONOMY.
Appellant will file a brief under Rule 22(b) in support of said certificate on or before March 2, 2015.
Court-Martial Trial Practice Blog