Court-Martial Trial Practice

I believe it is prudent to sound a note of caution to the field about the applicability of this decision to future cases with different facts.

United States v. Norwood, 80 M.J. ___ (C.A.A.F. 2021) (Ohlson, J., concurring in the result).

This is comment appropriately applied to most appellate decisions. I tend to look at many appellate decisions from a different perspective than most. As I read appellate decisions I think of them as you shouldn’t do this, but if you do you will err or not. Or just because the court affirmed the prosecution’s conduct doesn’t mean that it was proper conduct or license to do it again.

We all have been in the position of filing motions in-limine to admit or object to the admission of evidence. I do this frequently for its efficiency and help in forming my case as we advance. There are times when counsel, usually trial counsel, wants to preadmit evidence.

There are times I do not object to preadmission and times I object. A primary reason to preadmit evidence is for use in opening statements. Here is my thought on why counsel might object to preadmission.

The military judge erred in pre-admitting Prosecution Exhibit 1, photos alleged to have been of the complaining witness at an earlier age, and Appellant was prejudiced when trial counsel published the exhibit to the members during opening statement. The military judge put his imprimatur on the evidence before the defense had the opportunity to cross-examine the witness in front of the fact-finder. Later examination does not avoid the combined effect of the military judge’s imprimatur, the primacy and recency effect (which we are all trained about); and the human tendency to solidify in an opinion formed early on (cognitive dissonance).

Equal Supreme Court Access for Military Personnel: An Overdue Reform, 131 Yale L.J. Forum ___ (2021) (forthcoming), by Prof. Eugene R Fidell, Prof. Brenner M. Fissell, Cdr. (Ret). Philip D. Cave, is available here on SSRN. Abstract:

While one might think that every criminal defendant in the United States has the opportunity to eventually appeal their conviction to the Supreme Court, Congress has largely blocked the path of perhaps the most deserving category of defendants: military personnel convicted at courts-martial. This is because under the 1983 law granting certiorari jurisdiction over military cases, only court-martial convictions that are granted review by the nation’s highest military court may be appealed; those in which that court denies review are excluded from access to the Supreme Court.

In this Article, we argue that this jurisdictional limitation is both bad policy and unconstitutional for several reasons, and that Congress should remove it. Whether or not a court would find the limitation unconstitutional is not the point. Congress has an independent obligation to avoid violating constitutional norms. By delegating to an executive branch court—the United States Court of Appeals for the Armed Forces (CAAF)—the power to determine the Supreme Court’s jurisdiction over court-martial appeals, Congress violated the separation of powers. In carving out a comparatively small class of cases as non-reviewable for the ostensible purpose of reducing the Supreme Court’s workload, Congress acted irrationally and violated equal protection. By making this category nearly coterminous with the universe of military cases (since almost all are denied review by CAAF), and conferring on that court a vague and non-reviewable standard for granting review, Congress violated the Exceptions Clause. Finally, by providing for Supreme Court jurisdiction over cases in which a Judge Advocate General certifies a case for review, but not over those in which an accused seeks review, the system unfairly provides asymmetric access to justice in favor of the government.

“Racism has long corrupted American military justice – famously exemplified by the 1917 Houston riots, which resulted in the Army’s summary execution of 19 African American soldiers after sham trials. In 2019, the Government Accountability Office found that in the Army, Navy, and Marine Corps, black service members “were about twice as likely as white servicemembers to be tried in general and special courts-martial.”

Such disparities still exist within the American military’s criminal justice and disciplinary systems, and demand action.

This is precisely why the National Institute of Military Justice, HOFSTRA University – Maurice A. Deane School of Law, and Southwestern Law School’s Armed Forces Law Society are co-hosting this important event.

Prof. Colin Miller tells us that,

Similar to its federal counterpart, Pennsylvania Rule of Evidence 806 states that

When a hearsay statement has been admitted in evidence, the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The court may admit evidence of the declarant’s inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination.

A Reid reminder.

Military.com reports U.S. Charges Son in Civilian Navy Staffer’s Killing in Bahrain. Bahrain declined prosecution; federal marshalls will bring him to the U.S. for prosecution in federal district court. Were this the early 1950’s it is possible he would be facing court-martial—that is until Reid v. Covert. In Reid v. Covert, 354 U.S. 1 (1956), the Supreme Court decided that it was unconstitutional to try at court-martial civilians accompanying the force overseas. Many years later, there had been a clamor about “dependents” and contractors escaping responsibility for crimes committed while accompanying their sponsor overseas.

A change to Article 2(a), UCMJ, was intended to fill in some of the blanks by extending jurisdiction to “In time of declared war or a contingency operation, persons serving with or accompanying an armed force in the field.”

Similar to its federal counterpart, section 90.404(2)(a) of the Florida Statutes states that

Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

Typically, these rules are used by prosecutors to prove a criminal defendant’s motive, opportunity, etc. But, at the federal level, defendants can use “reverse 404(b)” evidence to show, for instance, that someone else had a motive to commit the crime charged. And, as the recent opinion of the District Court of Appeal of Florida, Third District, in Posey v. State, 2021 WL 115437 (Fla.App.3rd 2021), makes clear, Florida similarly allows for “reverse Williams” evidence.

An implicit bias is “‘an association or preference that is not consciously generated and is experienced without awareness.’” Michele Benedetto Neitz, Pulling Back the Curtain: Implicit Bias in the Law School Dean Search Process, 49 SETON HALL L. REV. 629, 656 (2019) (quoting J. Bernice B. Donald & Sarah E. Redfield, Framing the Discussion, in ENHANCING JUSTICE: REDUCING BIAS 5, 14 (Sarah E. Redfield ed., 2017)). So, does a court violate the Constitutional rights of an African American defendant by precluding his attorney about implicit bias during jury selection? That was the question addressed by the Supreme Court of North Carolina in State v. Crump, 851 S.E.2d 904 (N.C. 2020).

In Crump, Ramar Crump, a African American man, was convicted of 9 counts of armed robbery and second degree kidnapping, 2 counts of possession of a firearm by a convicted felon, conspiracy to commit armed robbery and 2 counts of assault with a deadly weapon with intent to kill. These charges stemmed from a shootout between Crump and police officers.

So writes Prof. Colin Miller

The Pentagon Inspector General has announced plans to evaluate how well U.S. Central Command and Special Operations Command are following rules aimed at preventing war crimes.

In a memo issued Monday, the IG said that the investigation will focus on the commands’ efforts to carry out Defense Department directives aimed at reducing “potential law of war violations when conducting operations.”

The evaluation would also determine whether the two commands reported alleged war crimes in accordance with DoD policy, the IG said.