What, if anything, can you as military defense counsel do if you suspect some shenanigans during panel member deliberations?

Military Rule of Evidence 606 states the basic rule against questioning the panel members during or after the trial about what went on during deliberations.

Prohibited Testimony or Other Evidence. During an inquiry into the validity of a finding or sentence, a member of a court-martial may not testify about any statement made or incident that occurred during the deliberations of that court-martial; the effect of anything on that member’s or another member’s vote; or any member’s mental processes concerning the finding or sentence. The military judge may not receive a member’s affidavit or evidence of a member’s statement on these matters.

Colorado v. Johnson, No. 2021 CO 35, 396 P.3d ____ (2021), requires us to visit the Hobson’s choice where you have successfully had evidence or statements suppressed but there is much value added if the client testifies. The issue then becomes one of potential impeachment with the suppressed evidence.

Mil. R. Evid. 304(e)(1) gives us a partial answer.

(e) Limited Use of an Involuntary Statement. A statement obtained in violation of Article 31 or Mil. R.

In United States v. Schloff, we had an issue with extraneous influences in the “jury” room. The two senior members essentially argued that the Army reputation for dealing with sexual assaults was relevant to their findings–and a guilty result ensued.

At the beginning of deliberations on findings of appellant’s court-martial, the president and senior ranking member of the panel, [COL JW], made a statement to the effect that based on the political climate, the Army could not seem weak or soft in dealing with sexual harassment or assault. He also asked a question to the effect of, ‘How does the Chief of Staff of the Army’s current emphasis on sexual harassment affect the findings and our decision in this matter?’ [COL AM] made some unspecified but similar comments or comments indicating agreement with [COL JW].

Through luck, we discovered this post-trial, and the ACCA set aside the findings and allowed a new trial. In a footnote, the court observed the standard rule about jury deliberations.

I think we all know that MCIOs use Cellebrite UFED devices and software to conduct DFEs of an accused’s cell or smartphone.

Up until now, it seems, the DFE reports have been accepted as reliable and accurate so we do not often find ourselves litigating the reliability of the DFE reports.

Have circumstances changed which require more attention to the underlying forensic examination of the DFE? I ask because of a new report from Engadget, “Signal hacked Cellebrite’s phone hacking software used by law enforcement.”

The Army has announced servicewide and command-specific changes in the wake of a scathing independent report last year that called for a major overhaul of both its Criminal Investigation Command and its Sexual Harassment/Assault Response and Prevention Program, reports Army Times.

The changes include the following, according to an Army statement:

Army-wide

Until now, a person wishing to upgrade their discharge would file a petition with the Service discharge review board. Beginning April 2021, the Department of Defense has established a new and final board of appeal, called the Discharge Appeal Review Board.

The new Discharge Appeal Review Board will allow those service members a final review of their requests to upgrade their discharge or dismissal characterization after they have exhausted all other available administrative options, the Defense Department’s release said. Congress ordered the board created in the fiscal 2020 National Defense Authorization Act.

Air Force

Another item from Prof. Colin Miller

Professor Katie Kronick (American University Washington College of Law) has posted “Forensic Science and the Judicial Conformity Problem” (Seton Hall Law Review, forthcoming) on SSRN. Here is the abstract:

Almost a quarter of known wrongful convictions have involved faulty forensic science evidence. Since 2008, a series of government-sponsored reports reveals that many areas of forensic science are not only vulnerable to human error, but also lack scientific or evidentiary support for the conclusions they purport to reach. This includes fingerprint analysis, firearm and toolmark examination, bitemark comparison, and hair microscopy. Yet judges continue to admit this expert testimony in criminal cases ranging from homicide to firearm possession to sexual assault without the critical analysis one might expect given the now well-identified problems and the stakes at hand.

Prof. Miller brings us this.

Federal Rule of Evidence 609(b) states the following:

(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

United States v. Pearson, 80 M.J. ___ (N-M Ct. Crim. App. 2021).

Sentence adjudged 25 July 2019 by a general court-martial convened at Marine Corps Air Station Yuma, Arizona, consisting of officer and enlisted members. Sentence in the Entry of Judgment: confinement for eight months and a duck dinner.

Appellant asserts four assignments of error [AOEs]:1 (1) this Court lacks jurisdiction to act on the findings and sentence because the convening authority took “no action” on the sentence;2 (2) the military judge erred in failing to suppress Appellant’s statements to a civilian law enforcement officer and his subsequent statements to the NCIS; (3) the evidence is legally and factually insufficient to sustain a conviction for receiving, viewing, and possessing child pornography; and (4) Appellant’s sentence was inappropriately severe. We find merit in the third AOE because only one of the five images charged images constitutes child pornography. Therefore, we set aside certain language in the child pornography specification and reassess the sentence.

APPELLATE ADVOCACY

Tessa Dysart at Appellate Advocacy Blog posts, ““This is Not Proper Appellate Advocacy”: Third Circuit Slaps Sanctions on Attorney Who Copied and Pasted Trial Court Briefs. The attorney was ordered to personally pay the defendant’s costs.

For a historical segue—you might remember that the NMCCA once had a problem of cut-and-pasting, largely wholesale the Government Answer to Appellant’s brief. In United States v. Jenkins, the court took up,

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