Court-Martial Trial Practice Blog
Worth the Read, Doug Stout, Veterans column: Newark’s Scott found guilty of mutiny. Newark Advocate.
United States v. Scott is due to be argued before the Court of Appeals for the Armed Forces pm 17 November 2020. The issue is whether Appellant’s trial defense counsel were ineffective by failing to introduce substantial positive character evidence and combat service on sentencing.
In United States v. Demerse, No. 900529R, 1992 CMR LEXIS 511 (N.M.C.M.R. Apr. 20, 1992), the Navy-Marine Corps Court of Military Review summarily affirmed the findings and sentence. The court did not address Issue IV which was,
THE SENTENCE INCLUDING FIVE YEARS CONFINEMENT IS INAPPROPRIATELY SEVERE PUNISHMENT FOR APPELLANT’S OFFENSES GIVEN APPELLANT’S HISTORY OF SERVICE TO THE NAVY.
The Court of Military Appeals granted on the following issues,
WHETHER THE NAVY-MARINE CORPS COURT OF MILITARY REVIEW HAS DECIDED APPELLANT’S CASE IN CONFLICT WITH PRECEDENT FROM THIS HONORABLE COURT REGARDING THE FAILURE OF TRIAL DEFENSE COUNSEL TO OFFER APPELLANT’S PERSONAL DECORATIONS EITHER AT TRIAL, OR TO COMMENT UPON THEIR OMISSION FROM THE STAFF JUDGE ADVOCATE’S RECOMMENDATION AND CONVENING AUTHORITY’S ACTION, THEREBY DENYING APPELLANT HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
WHETHER THE STAFF JUDGE ADVOCATE COMMITTED PLAIN ERROR BY OMITTING FROM HIS RECOMMENDATION TO THE CONVENING AUTHORITY AWARDS AND DECORATIONS APPELLANT RECEIVED IN VIETNAM.
United States v. DeMerse, 37 M.J. 488, 489 (C.A.A.F. 1993).
- “[D]efense counsel called one witness and introduced seven exhibits. Defense counsel did not, however, introduce any evidence of appellant’s awards and decorations. During closing argument on sentencing, defense counsel stated that appellant “has spent nearly 18 years in the Navy. Those years were honorable service, much of it at sea.” Defense counsel did not even then enumerate appellant’s awards and decorations for the military judge.”
- “This was a bench trial where the military judge is presumed to know our decision in United States v. Rowe, [18 C.M.R. 54 (C.M.A. 1968)] and its concern for evidence of Vietnam service.” 37 M.J. at 490. (Note, Captain Scott’s combat service was Iraq and Afghanistan.)
- “To the extent we have such discretion, we exercise it in appellant’s case because of the traditional importance of awards and decorations to the integrity of the military punishment process.” 37 M.J. at 492.
- “Moreover, we reject the Government’s position that the omitted awards [reveal nothing of appellant’s character or would somehow aggravate his sentencein view of his current failings. On the contrary, appellate defense counsel argues:
- “Service in Vietnam carries special distinction. Such service is even more noteworthy today, some 20 years after the cessation of hostilities in Vietnam, as it is becoming increasingly rare to find servicemembers on active duty with Vietnam service. Awards received as a result of Vietnam service are likewise viewed as important statements about a soldier’s or sailor’s character.”
- “We wholeheartedly agree with this argument and reaffirm our prior decision in United States v. Rowe, supra, that Vietnam service is not to be forgotten.” 37 M.J. at 492-93.
- It is to be hoped that similar agreement and reaffirmation arises in Scott.
All of which is why I started with the case of a Civil War officer convicted of serious offenses for which he received a light sentence; likely on the basis of “the high regard entertained by the Court for the gallantry and soldierly bearing generally of Capt. Scott and it is deeply to be regretted that so brave an officer[.]”