Articles Posted in Appeals

The CGCCA is now posting appellate briefs in pending cases. An excellent additional resources for trial and appellate counsel. https://www.uscg.mil/Resources/Legal/Court-of-Criminal-Appeals/Court-of-Criminal-Appeals-Appellate-Briefs/

Daniel Epps, Harmless Errors and Substantial Rights. 131 HARV. L. REV. 2117 (2018). The harmless constitutional error doctrine is as baffling as it is ubiquitous. Although appellate courts rely on it to deny relief for claimed constitutional violations every day, virtually every aspect of the doctrine is subject to fundamental disagreement and confusion. Judges and…

Those of us who engage with discharge reviews, correction boards, and federal court on behalf of service-members are used to reading about the presumption of regularity–it’s a regular defense by the gubmint to an applicants claim. “I was improperly discharged.” A: “We can’t find any record of your discharge. Because of that we consider you…

During trial, the defense counsel make many decisions; sometimes there is an objection to evidence, sometimes not. How the appellate courts deal with allegedly inadmissible evidence depends on whether there was an objection at trial. If there is an objection the appellate court looks to see if the evidence was objectionable, whether the judge abused…

Since United States v. Hills, and then United States v. Hukill, the appellate courts have been trying to sort out quite a few cases on remand. Here is a list of the most recent CAAF actions. No. 18-0087/AF. U.S. v. Jonathan P. Robertson. CCA 39061. On consideration of the petition for grant of review of…

According to SCOTBlog: The question of how to count the votes of the justices to decide who won a Supreme Court case – and on what ground – when the court is splintered has baffled lower courts for years. The rule laid out in Marks v. United States purports to answer that question: “When a…

Of interest to military justice practitioners is a new grant of certiorari at the U. S. Supreme Court today. SCOTUSBlog reports: Okechuku v. United States, No. 17-1130 Issues: Whether, and under what circumstances, the erroneous submission of a deliberate-ignorance instruction is harmless error. From the petition of Appellant. Prosecutors routinely request, and district courts routinely…

When the Congress, the media, and commanders called for a crackdown on military sexual assaults, the fear among the defense bar was the specter of unlawful command influence. Most of the cases have focussed on pretrial and post-trial. But the biggest fear was realized in United States v. Schloff, a case I did at trial…

It is always good to file or submit petitions and pleadings on time. Sometimes the due date can be complicated. Let’s say your due date falls on a Sunday? A federal holiday? Or??? Here is a thought from friend and colleague Dew Process. CAAF, in its decision in United States v. Rodriguez, 67 M.J. 110…