The difficult case
where persistence pays
"Appeals" under UCMJ art. 69(b), or "reconsiderations" under UCMJ art. 69(a) are difficult to win. If you do not get a punitive discharge or at least a year confinement the service JAG decides your appeal. Most of the time that means an appeal is denied except in a very few cases. Today we received the good news in a UCMJ art. 69(a) reconsideration that The Judge Advocate General has referred the case to the Court of Criminal Appeals. This means that the client will now get a full and proper appeal of his issues and the validity of his convictions.
After the court-martial the client was processed for separation. The first time the Board heard the case they declined to find misconduct because they did not believe a crime had been committed. Told to do it again, the Board still stated disagreement with the finding of guilty, but also recommended retention.
Do not be discouraged
In United States v. Plant we were unsuccessful at the Air Force Court of Criminal Appeals. Reported below where we were successful before the Court of Appeals for the Armed Forces. Now, the Air Force court has taken action on reassessment of the sentence and granted the full relief we asked for.
In the beginning the client and his family were discouraged and did not think they could get any help on appeal.
A conviction through any means?
Because of the political and leadership pressures to get convictions in sexual assault cases, some prosecutors are resorting to almost any means they think necessary. In United States v. Garcia, that included government misconduct by using UCI in their argument and arguing that Garcia should be convicted because he invoked his right to have a trial and right to confront the accusations. The result is that the Army Court of Criminal Appeals dismissed the sexual assault and forcible sodomy charges. The court did leave intact some minor sexual harassment allegations. But most importantly, the client does not have to register as a sex offender and is not a convicted rapist. The court noted:
It is fundamentally unjust to incriminate an appellant by improperly commenting on his invocation of a constitutional right. . . . During her rebuttal argument on findings, trial counsel made two improper references to appellant's exercise of his constitutional rights. --Wrong.
In light of the three factors in Simpson, we first conclude government counsel's multiple improper references to Army-wide efforts to respond to and prevent sexual assault created the appearance of unlawful command influence. As set forth below in our prejudice analysis, we conclude that the proceedings were unfair and that the government's persistent and improper references to Army policy were a source of an unfair trial. --Wrong.
On 5 November 2015, the CAAF issued an order in United States v. Pinkela. They accepted our arguments without further briefing or oral argument. Now we are on the way to getting the client a sentencing rehearing and hopefully he will get his retirement.
This make three of four successful appeals before the Court of Appeals for the Armed Forces this year.
The prosecution overcharges
United States v. Plant. In this case we challenged a conviction for child endangerment. The C.A.A.F. held that the evidence was legally insufficient and set aside the conviction.
United States v. Pinkela. The C.A.A.F. summarily reversed the ACCA decision and ordered ACCA to redo their Article 66, UCMJ, review.
United States v. Brown, . Result – new trial.
United States v. Savala, 70 M.J.70 (2011). NMCCA found legal error but opined the error was harmless beyond reasonable doubt. On appeal to CAAF that court found the error was prejudicial and that the government did not establish the error was harmless beyond reasonable doubt. The CAAF ordered a retrial or dismissal. The command elected to accept an OTH separation in lieu trial. Thus Savala has no conviction and does not have to register as a sex offender.I represented Savala at trial and on appeal. After the court reversed his conviction and granted a new trial, the military decided is could not prosecute him so he was issued an administrative discharge.
United States v. Saylor, . This was an amicus petition I and several others filed on behalf of the National Institute of Military Justice.
United States v. Dorman: 58 M.J. 295 (C.A.A.F. 2003).
United States v. Lee,54 M.J. 285 (C.A.A.F. 2000): Argued for amicus the National Institute of Military Justice. Question of quorum for CCA appellate judges.
United States v. USAF 0-3: Convicted of bigamy, use of false official documents, falsifying immigration related documents.
King v. United States (May 4, 2000): Counsel for, and argued for amicus the National Institute of Military Justice. Writ appeal petition. CAAF All Writs jurisdiction, prejudicial pretrial publicity, and Sixth Amendment right to effective assistance of counsel.
United States v. Weiss, 36 M.J. 224 (1993), aff'd Weiss v. United States, 510 U.S. 163 (1994). Challenge to the designation of military trial and appellate judges as violating the Appointments Clause, Article II, U.S. Constitution.
United States v. Jordan. Petition to the U.S. Supreme Court, cert. denied Jordan v. United States, 510 U.S. 1177 (1994).
United States v. Smith: 43 M.J. 390 (1996). Members challenge.
United States v. Saylor: 40 M.J. 715 (N.M.Ct.Crim.App. 1994). Case clarified the effect of post-trial misconduct on plea agreements and the procedures required to vacate a suspended sentence.
United States v. Collins: 39 M.J. 739 (N.M.Ct.Crim.App. 1994). Speedy trial issue under UCMJ, Article 10, 10 U.S. Code §810 (pretrial confinement delay). Case helped expand the rule for a showing of prosecutorial "diligence.".
United States v. Clemons: 39 M.J. 865 (N.M.Ct.Crim.App. 1994). BCD not an authorized punishment.