Currently, a military jury (called a Panel of Members) must have eight members in a general court-martial (12 if it’s a death penalty case) and four in a special court-martial. Article 29. Three-fourths of the members must vote for a finding of guilty. Article 52.

That is the current law in the military, but it is being challenged. The Court of Appeals for the Armed Forces has several cases on the issue of unanimous verdicts, which will be decided this term. If the court decides in favor of unanimous verdicts, then the Government will likely appeal to the U. S. Supreme Court (or vice-versa).

What should the military defense counsel being doing now at trial? One step is easy, but there may be other steps that should be considered.

Step One: file a motion with the trial judge that the members should be instructed that they must have a unanimous vote for any finding of guilty. Most military are already doing this. The military judge will almost certainly deny the motion, but you have put the issue on the record for appeal. Because the voting is a constitutional issue, an Appellant whose case is still under review might benefit from a favorable change in the law while the case is still on appeal.

The Supreme Court has previously held that an appellant might benefit from the change in the law. Griffith v. Kentucky, 479 U.S. 314 (1987). The Court of Appeals for the Armed Forces (CAAF) has followed that rule in, for example, United States v. Harcrow, 66 M.J. 154 (C.A.A.F. 2008). There is some suggestion that the retroactivity principle need not always apply–this is fact specific and adds uncertainty. Your military appellate defense lawyer is able to help navigate this problem. CAAF has looked at the issue in United States v. St. Blanc, 70 M.J. 424 (C.A.A.F. 2012) in relation to what remedy to apply.

But,

Step Two. It seems to me that there is an earlier point in the trial where the military defense lawyer needs to object to the nonunanimous verdict rule. At the arraignment, the judge advises the accused of their forum rights–officer members, officer-enlisted members, or judge alone. Here the judge tells the accused about the voting requirement. Perhaps, at this stage, the military defense counsel should object and ask the accused to be advised that the voting will be unanimous. The judge will not do that because, again, under current law, she doesn’t have to.

Why Step Two?

Forum choice is always difficult–some cases are usually best tried by a judge alone most others should be a jury (members) trial. What we don’t know is whether a case that might be best by judge alone would be better as a jury (members) trial if a unanimous verdict is required. It’s a combination of numbers and intuition about who the members are. Some of us more experienced military defense counsel are familiar with the old numbers game of how many members to have on the jury.

So, one of the new issues we’ve been raising has been the denial of a proper forum choice based on the judge’s initial forum and voting advice. This becomes important on appeal where the accused has elected trial by judge alone but would have elected members if the voting had to be unanimous for guilt. It’s rather simple–it might be easier to convince one member to vote not guilty than three.

At Cave & Freeburg, LLP, we try to be creative and thoughtful about your defense and consider all options that might work in your favor.

The Fourth Amendment protects against unreasonable searches of our property, including cell phones. In Riley, the Supreme Court properly required a search warrant for (CID, OSI, CGIS, and NCIS) intrusions into seized cellphones. The court has acknowledged that people have a privacy right against Government intrusion without a warrant based on probable cause. As we know, there is an awful lot of personal data that is kept on the cellphone, and that can be retrieved with forensic tools.

In Lattin, the issue was a fishing expedition through the Appellant’s cellphone. The trial transcript shows that the OSI agent believed she had the right to search everything in the cellphone because it had been seized after the execution of a commander’s search and seizure authorization. With that general warrant concept in her mind she scrolled through a lot of information on the Appellant’s phone that wasn’t related to the reason for the search in the beginning. The OSI agent did not believe there were any limits based on her training and experience. Both the AFCCA and CAAF have ruled that the search was unlawful but that it was excused because there would be no future deterrent effect to OSI committing further unlawful searches. The court partly relied on Mil. R. Evid. 311, which wrongly summarizes the law post-Herring that was reinforced in Davis.

Shortly after Lattin comes Shields, another cellphone search case. The case presents dueling experts where, as you would expect, the Government expert was arguably given more “credibility” than the defense expert. When DCFL or government computer forensic “experts,” tell you they used the best and most current methods, you should not always believe that. Shields is a case where the DCFL used bad methods that ended up creating a fishing expedition. The court seemed to agree that the method wasn’t the best, but–it was good enough for government work.

In each case, the investigators were looking for texts, images, or data for a specific date or short time period. Forensic experts–good ones–will tell you that using proper methods readily available in the Atom or Cellebrite applications can make it relatively easy to create a narrow or focused search for items within a specified time period. Then, once the data is extracted for that time period, additional search criteria can narrow the data to that which is relevant to the reasons for the search. This, of course, is a little more time-consuming than a general search which, in light of Shields and Lattin, they might get away with.

These are matters–the law of the Fourth Amendment and issues of particularity and scope and cellphone or computer forensics that your military defense counsel needs to know about.

A jokester might suggest that the MCIO theme song might be ‘Scrolling Down the River on a Sunny Afternoon.’

If you do have leisure time on the river, you might take Digital Rummaging with you to read along the way.

Attorney Cave of Cave & Freeburg, LLP, is co-counsel in a petition for certiorari to be filed in Lattin v. United States.

Give us a call if you want to talk about representation by Cave & Freeburg, LLP as your military defense counsel.

According to the appellate decisions, the special victim counsel (SVC) and the trial counsel (TC) tried to discourage investigators from interviewing a witness. It worked for a while during which time it appears the witness had a less clear memory of events. The TC thought the witness might have “exculpatory” information which they are obligated to disclose to the defense and which might be helpful to the accused.

The Air Force Court of Criminal Appeals (AFCCA) decision has an extensive review of the facts and circumstances of what happened. Ultimately, the Air Force court and CAAF decided while it was wrong, there was no prejudice against the accused. This case represents how a prepared and aggressive military defense lawyer can help protect you and the record. Sadly, this could happen to you. It is not clear if the SVCs and TCs will learn anything from this case to study their practices and comply with the law and ethics rules. We shall see. The CAAF has these words,

Turning to the merits, we agree that some of the facts and circumstances that Appellant has identified would harm the public’s perception of the military justice system. Indeed, matters (1) through (5) generally concern a point that the Government itself concedes in its brief, namely, that the efforts of trial counsel and SVC “to discourage law enforcement agents from interviewing [the victim’s husband]—an outcry witness—were unwise and inadvisable” because neither side “benefits when [AF]OSI fails to fully investigate a case.” We also specifically agree that the trial counsel, as a judge advocate, should have known better than to discourage an AFOSI investigation into potentially exculpatory evidence.

“Unwise[?]” Really? If it were you the accused doing that, I bet there would be an obstruction or attempted obstruction of justice on your charge sheet.

“[S]hould have known better[?]” If it were you the accused, doing that, the prosecutor would argue that that isn’t a defense.

If you are an accused, how would you feel about this? How about your spouse, your mother, your family, your friends, your neighbors, or your town? Would people believe you will get a fair trial in the military at a court-martial under the UCMJ?

The prosecution was saved in this case because, according to CAAF, the SVC and TC were removed from any further participation in the case, there was very thorough litigation at trial, and there was no intent to prejudice the accused by this “regrettable error,” and, fortunately, it turns out that there was, in the court’s view, no actual prejudice. Of course, SVCs and TCs are not going to concede that your regrettable error should not be punished. They will go all out to have you found guilty.

Yes, back in 1976 I got my Bluebook and throughout the three years of law school, it was a regular reference. Ah, but it continues to be a daily tool–for motions, briefs, and such. I fear one day I’ll Bluebook a conversation with a relative or friend in everyday conversation.

One of the common questions is how best to quote, be it an appellate decision or a law journal. Jack Metzler proposes a solution, In Cleaning Up Quotations, to be published in 18 J. APP. PRAC. & PROCESS.

So it often turns out that the best quotation for a proposition is one in which a judge has quoted some other judge, and there’s a good chance that judge was quoting yet another.The Bluebook dictates how to cite the original source of quoted material, how to indicate that the quotation contains a quotation, and how to show any alterations to the immediate source or the original source. But once the quotation contains a quotation, the Bluebook rules often mean that good quotes quickly acquire a significant amount of citation baggage that makes it difficult to use them without significantly distracting from the author’s point or increasing the author’s work for little substantive gain.

His solution is quite elegant and I hope the Bluebook soon includes his suggestion.

While looking into the article I found The Journal of Appellate Practice & Process is available for a $25.00 a year subscription. It is advertised as “a professionally edited publication that provides a forum for creative thought and dialogue about the operation of appellate courts and their influence on the development of the law.” (Note, I get nothing for telling you this.)

To refresh.

CAAF decided the Army case of United States v. Hukill, 76 M.J. 219, No. 17-0003/AR (slip op.), on Tuesday, May 2, 2017. A short opinion reiterates the rationale of United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) . “[T]he use of evidence of charged conduct as M.R.E. 413 propensity evidence for other charged conduct in the same case is error, regardless of the forum, the number of victims, or whether the events are connected.” Slip op. at 6. CAAF reverses the decision of the Army CCA that found Hills inapplicable in judge-alone trials, reverses the appellant’s convictions, and authorizes a rehearing.

Whether the military judge erred in denying the defense motion for appropriate relief under Rule for Court-Martial 917 where the military judge improperly applied Article 130, housebreaking, to a motor pool.

A unanimous court found that the military judge erred.

The accused was charged under Art. 130, UCMJ, with housebreaking by entering the 3rd Brigade Special Troops Battalion motor pool at Fort Benning, Georgia, intending to steal batteries. The motor pool “is a concrete lot completely surrounded by a fence. . . used for the storage and maintenance of the military property, including vehicles.” Slip op. at 3. The CAAF finds that:

Both the commonsense meaning of “structure” within a housebreaking offense and the limiting language of the [Manual for Courts-Martial] leave us with no doubt that an open-air fenced area like the 3rd BTSB motor pool does not fall within the scope of Article 130, UCMJ, because it is not a structure in the nature of a building or dwelling.

Slip op. at 4. According to the court, you can’t take a piece of land, put a fence around it, and then call it a structure similar to a house, building, or home.

The Court of Appeals for the Armed Forces has specified an issue for review in this case as follows:

No. 16-0487/AR. U.S. v. Mario I. Lopez. CCA 20140943 [2016 CAAF LEXIS 773]. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court: WHETHER THE MILITARY JUDGE ERRED BY ADMITTING THE TESTIMONY OF APPELLANT’S WIFE, MRS. CL, WHO TESTIFIED THAT APPELLANT’S APOLOGY TO HIS STEPSON MEANT THAT APPELLANT WAS “LOOSELY ADMITTING GUILT” TO CRIMINAL CONDUCT, AND BY ALSO ADMITTING THE TESTIMONY OF MS. NM, WHO TESTIFIED THAT APPELLANT “HAD PROBABLY RAPED” HIS WIFE BECAUSE MRS. CL HAD RECENTLY RESEARCHED “SPOUSAL RAPE” ON THE INTERNET.

I’m going to presume that some argument was made under MRE 701 as to lay opinion testimony? One hopes the defense made an objection based on the testimony as being improper opinion.

More information here.

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FINDING THAT A RESERVIST CAN CREATE COURT-MARTIAL JURISDICTION BY FORGING ACTIVE DUTY ORDERS AND/OR INACTIVE-DUTY TRAINING ORDERS AND BY FINDING THAT COURT-MARTIAL JURISDICTION EXISTED FOR EACH 120-DAY PERIOD LISTED ON THE THREE APPLICATIONS FOR MPA MAN-DAY TOURS.

You can see an analysis of the case status here.

On Thursday CAAF granted review in the Air Force case of United States v. Yanez:

No. 14-0411/AF. U.S. v. Joseph W. YANEZ. CCA 38181. Review granted on the following issue: WHETHER THE MILITARY JUDGE ERRED IN APPLYING THE MARITAL PRIVILEGE.

The Appellant in Yanez personally raised the issue pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). The AFCCA opinion is here.