Court-Martial Trial Practice Blog

The rule of lenity is something you should have in the toolbox regardless of being a trial or appellate counsel.

Intisar A. Rabb, The Appellate Rule of Lenity: Responding to Abbe R. Gluck & Richard A. Posner, Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals.  131 HARV. L. REV. F. 179 (2018).

Lenity’s prominence is unsurprising for a few reasons. First, as an ancient principle directing judges to construe ambiguous criminal statutes narrowly, SeeAntonin Scalia, A Matter of Interpretation 29 (Amy Gutmann ed., 1997) (“The rule of lenity is almost as old as the common law itself, so I suppose that is validated by sheer antiquity.”

You’ll remember Hills, Hukill, and Guardado.

Basically, there are problems when the prosecution tries to invoke MRE 413 or 414 when all of the alleged events are charged.  The result has been many cases being dismissed and sent for retrial or alternative actions.  But, as reflected below, not all cases have a positive result for the appellant.

No. 18-0107/AR. U.S. v. Jameson T. Hazelbower. CCA 20150335. On consideration of the granted issue, 77 M.J. 273 (C.A.A.F. 2018), the judgment of the United States Army Court of Criminal Appeals, United States v. Hazelbower, No. 20150335 (A. Ct. Crim. App. Nov. 22, 2017) (unpublished), and the judgment of this Court in United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017), we conclude that the military judge’s erroneous use of charged misconduct for propensity purposes was harmless beyond a reasonable doubt, for “there [i]s no reasonable possibility that the error contributed to [Appellant]’s verdict.” United States v. Hukill, 76 M.J. 219, 222 (C.A.A.F. 2017) (citation omitted). In the instant case, the victims’ accounts were corroborated by a wealth of independent supporting evidence, including (but not limited to) admissions of rape, incriminating text and Skype messages, and the exchange of nude photographs. Given the overwhelming evidence of Appellant’s guilt, we are convinced beyond a reasonable doubt that Appellant was convicted on the strength of the evidence alone. Guardado, 77 M.J. at 94. Therefore, it is ordered that the judgment of the United States Army Court of Criminal Appeals is affirmed.

The author of this article clearly doesn’t understand.  THE BIGGEST OBSTACLE TO THE PENTAGON’S WAR ON SEXUAL ASSAULT: THE MILITARY JUSTICE SYSTEM: A legal principle intended to protect service members after World War II has spawned a dangerous precedent.

Amy Howe, SCOTUSBlog reports on a new decision relevant to military practitioners.

Opinion analysis: Justices decline to extend Fourth Amendment’s “automobile exception”

The Supreme Court, however, “has long recognized that the military is, by necessity, a specialized society separate from civilian society” and “that the military has, again by necessity, developed laws and traditions of its own during its long history.” See Parker v. Levy, 417 U.S. 733, 743, 94 S. Ct. 2547, 2555, 41 L. Ed. 2d 439, 450-51 (1974). Moreover, in Parker v. Levy, where Dr. Levy had attacked his convictions under.  Articles 133 and 134 of the Uniform Code because of the claimed vagueness of these punitive articles, the Supreme Court pointed out:

Decisions of this Court during the last century have recognized that the longstanding customs and usages of the services impart accepted meaning to the seemingly imprecise standards of Arts 133 and 134.  In Dynes v. Hoover, 61 U.S. (20 How) 65, 15 L. Ed. 838 (1857), this Court upheld the Navy’s general article, which provided that “[a]ll crimes committed by persons belonging to the navy, which are not specified in the foregoing articles, shall be punished according to the laws and customs in such cases at sea.” The Court reasoned:

“[W]hen offences and crimes are not given in terms or by definition, the want of it may be supplied by a comprehensive enactment, such as the 32d article of the rules for the government of the navy, which means that courts martial have jurisdiction of such crimes as are not specified, but which have been recognized to be crimes and offences by the usages in the navy of all nations,and that they shall be punished according to the laws and customs of the sea. Notwithstanding the apparent indeterminateness of such a provision, it is not liable to abuse; for whatthose crimes are, and how they are to be punished, is well known by practical men in the navy and army, and by those who have studied the law of courts martial, and the offences of which the different courts martial, have cognizance.”

Though not raised by Appellant, an error in the staff judge advocate’s recommendation (SJAR) compels us to remand the case for new post-trial processing.

United States v. Spelts, Air Force Court of Criminal Appeals (May 2018).

Now for this.

Friend DP notes a pending Supreme Court petition in Gamble v. United States.  It looks like the case was supposed to have been presented at Thursdays conference.

Issue: Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

If the court grants the petition and if the court rules in the petitioner’s favor this would be a big deal for military accused’s.  As we know, there have been quite a few cases over the years (I’ve had a number of them) in which the client was tried in civilian court and the military wants another go at it.  The general rule is that if tried in a state court or the District of Columbia that is a “separate sovereign” from the federal government.  Petitioner’s brief begins:

Meet service members entrusted with guarding nuclear missiles that are among the most powerful in America’s arsenal. Air Force records obtained by The Associated Press show they bought, distributed and used the hallucinogen LSD and other mind-altering illegal drugs as part of a ring that operated undetected for months on a highly secure military base in Wyoming. After investigators closed in, one airman deserted to Mexico.

This is from a recent AP report.

Here from 2016, U.S. Air Force investigates drug activity of nuclear security force.  https://www.cnn.com/2016/03/18/politics/us-air-force-drug-activity/index.html

Military personnel interviewed as a suspect by a MCIO are never told they are under arrest, but that’s the effect of the MCIO taking fingerprints, “mug-shots” and DNA.

Once “arrested” you become titled and that information goes into the federal data base.

Same if you are prosecuted, although the MCIO is supposed to update the information about you and your status.