For many, Burdick v. United States, 236 U.S. 79 (1925), answered the question in the affirmative. In Burdick, the appellant was offered but declined a pardon. He then refused to testify in a criminal trial. Several conclusions seem to follow from the opinion.

1. A pardon can be given before conviction and sentence. If correct, this settles the discussion about several Trump pardons issued before the servicemember was tried.
2. A pardon can be refused and there is “no power in a court to force it on [the person].” @90.
3. Acceptance of a pardon “implies” acceptance of guilt. @91.

“This brings us to the differences between legislative immunity and a pardon. They are substantial. The latter carries an imputation of guilt; acceptance a confession of it. The former has no such imputation or confession. It is tantamount to the silence of the witness. It is noncommittal. It is the unobtrusive act of the law given protection against a sinister use of his testimony, not like a pardon, requiring him to confess his guilt in order to avoid a conviction of it.” @94.

It is from this language that people thought accepting a pardon was accepting guilt.

Now along comes Lorrance v. Commandant, USDB, a decision from the 10th Circuit. Here is the nub of it.

1. Does acceptance of a pardon and release from custody equal a “confession?”
2. Does acceptance of a pardon and release from custody waive or forfeit the right to petition for habeas corpus?

The Tenth concludes that there is no confession and Lorrance does not otherwise lose his right to petition for habeas corpus relief for his court-martial conviction and sentence. The case was remanded for further action not inconsistent with the court’s opinion.

“The writ of habeas corpus shall not extend to a prisoner unless” the prisoner is “in custody.” 28 U.S.C. § 2241(c). Notwithstanding that provision, a petitioner’s release from custody does not automatically moot a habeas petition. Carafas v. LaVallee, 391 U.S. 234, 237–38 (1968). Instead, a habeas petitioner can maintain his habeas action following his release from custody if he can identify “collateral consequences” constituting “disabilities or burdens [which] may flow from petitioner’s conviction.” Id. (quotations omitted).”

According to the court, there remained serious collateral consequences from the conviction.

1. Backpay,u
2. Rank.
3. VA benefits.
4. Retirement years credit.
5. Expungement of the conviction.

In a historical review of the pardon power and its effect, the court finds that the implication in Burdick is dicta and has been taken out of context. Among other facts, the court honed in on this,

“The U.S. Pardon Attorney included a letter to Lorance with the presidential pardon. Among other things, the letter informed Lorance, “A presidential pardon is a sign of forgiveness. It does not erase or expunge the record of conviction and does not indicate innocence.” (Id. at 80 (emphasis added).) The letter does not state that acceptance of the pardon is a confession of guilt or a waiver of habeas rights.”

The Tenth Circuit is generally known as unwelcoming to military prisoners when a writ of habeas corpus is before the district and appellate court. While many can disagree with the issuance of pardons by President Trump, the issues discussed in Lorrance are important and appear proper.

Now we need to know if the DoJ will petition the Supreme Court.

The ACCA’s 2011 opinion is here.

An enlisted panel sitting as a general court-martial convicted appellant, contrary to his pleas, of conspiracy to commit premeditated murder and premeditated murder, in violation of Articles 81 and 118, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 881 and 918. Appellant was acquitted of an additional offense of premeditated murder and obstruction of justice.

The court sentenced appellant to reduction to the grade of E-1; forfeiture of all pay and allowances; confinement for life (with eligibility for parole); and a dishonorable discharge.

See United States v. Hatley, No. 20090329, 2011 CCA LEXIS 124, rev. denied 71 M.J. 93 (C.A.A.F. 2012), cert. denied 568 U.S. 889 (2012).

Army Times reports he was paroled.

One of North Carolina’s most infamous murder cases is back in the national spotlight, with the release this week of the FX documentary series “A Wilderness of Error.”

Former Green Beret Army doctor Jeffrey MacDonald was convicted in 1979 of the murders of his pregnant wife, Colette, and two small daughters, Kimberley, 6, and Kristen, 2, in their Fort Bragg, N.C., apartment in 1970.

MacDonald claims that his family was beaten and stabbed to death by a group of hippies, but forensic evidence presented in the trial did not back up his claims.

Feb. 17, 1970: Colette Stevenson MacDonald, 26, and her two daughters, Kimberley, 6, and Kristin, 2, are beaten and stabbed to death in their home at 544 Castle Drive on the Fort Bragg Army base, adjacent to Fayetteville, N.C. Army Capt. Jeffrey MacDonald, a doctor and former Green Beret, is found with several stab wounds, but unlike his wife and daughters, his wounds are not fatal. MacDonald tells Army investigators that his family was killed by a band of hippies, including a woman in a floppy hat, who chanted “Acid is groovy, kill the pigs.” MacDonald was treated at Womack Army Hospital. His injuries include a bruise to his head, minor stab wounds on his abdomen and arm, and a stab wound to his chest that punctured and collapsed his lung. May 1, 1970: The Army charges MacDonald with three counts of murder. Oct. 13, 1970: The Army investigator in charge of the case recommends charges against MacDonald be dropped and that a Fayetteville woman (later revealed to be Helena Stoeckley) be investigated. Oct. 28, 1970: The Army officially concludes that there is not enough evidence to court-martial MacDonald. December 1970: MacDonald is honorably discharged from the Army and moves to New York to work as a doctor. He is interviewed by Bob Scheffer for Walter Cronkite’s “CBS Evening News” and appears on “The Dick Cavett Show.”

The rest of the timeline is devoted to the civilian prosecution.

Attorneys have a professional duty to investigate relevant facts about the matters on which they work. There is no specific rule or statute requiring that an attorney perform an internet search as part of this investigation. Yet attorneys have been found by judges to violate a “Duty to Google” when they have failed to conduct an internet search for relevant information about, for example, a claim, their own client, and even potential jurors in a trial. So much information is now available to attorneys so easily in electronic search results, it is time to wonder where, when, and how much attorneys should be searching. This Article examines the following questions: is the “Duty to Google” merely yet another example of how attorneys must become proficient in technology to meet their professional ethical obligations? Or is it something more? Where should this duty be codified, if anywhere? At what point does technology like a search engine become so “mainstream” that attorneys have a duty to use it or face allegations of malpractice? How will attorneys know how much Googling is enough? This article explores an attorney’s duty of investigation and notes that this duty has been, like the rest of legal practice, forever changed (and ever changing) by technology. It examines the potential sources of a Duty to Google and argues that this responsibility is poorly defined. Accordingly, this article argues for a better-defined duty of investigation, codified in a rule of professional conduct. The article concludes by looking to the future and suggesting industry-wide changes to better prepare attorneys to meet their (better defined) obligations of technological competency.

I think we already know and do this, but it’s nice to remind ourselves–and it appears that courts and Bars are enforcing this. Of course this applies equally to trial counsel as well as defense counsel. have we not at times found something interesting about a complaining witness on the web and not just of Facebook.

The “Duty to Google” contemplates that certain readily-available information on the public internet is so accessible that it must be discovered, collected, and examined by an attorney, or else that attorney is acting unethically, committing malpractice, or both.

@5.

See also, https://connectingvets.radio.com/articles/retired-army-general-james-grazioplene-stand-trial-rape-charges-army-dismissed

https://taskandpurpose.com/news/retired-army-general-rape-charges

Retired Army Maj. Gen. James Grazioplene on Wednesday admitted to sexually abusing his then-teenage daughter in the 1980s, in exchange for a suspension of his sentence. His daughter, Jennifer Elmore, turned 49 on Wednesday. Grazioplene pleaded guilty in a Prince William County, Virginia, circuit court to aggravated sexual battery. He has been in jail for approximately 18 months. He was expected to be released on Wednesday and will serve 20 years of probation, according to Elmore’s lawyer, Ryan Guilds.”

The case will be familiar to military justice practitioners.

Retired Maj. Gen. James Grazioplene, 69, faced an Article 32 hearing on charges he had repeatedly raped his daughter at various military postings in the United States and Germany in the 1980s. The military charges were dropped due to statute of limitations issues within the Uniform Code of Military Justice.

His case was affected by CAAF’s decision in Mangahas and others. The U. S. Supreme Ct did not have a chance to rule on CAAF’s Mangahas decision, but the military statute of limitations is pending before the Supreme Court in two cases. Here is a link to SCOTUSBlog on United States v. Briggs, consolidated with United States v. Collins. In the process it is expected that the Supreme Court will take on the issue of whether Coker v. Georgia really does apply to the military. SCOTUSBlog opines that “it will be interesting to see whether any of the justices demonstrate an appetite for the constitutional issue, or whether they think the statutory interpretation questions are dispositive.” I wonder if the Supreme Court will follow the doctrine of Constitutional avoidance–the usual practice of avoiding constitutional issues if the case can be resolved on a non-constitutional ground?

The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.

Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring).

We know that one of the reasons–motives–or as psychologists say “the secondary gain,” is to protect a marriage or relationship.

We know that some women are like men, they cheat on their spouse.

Yet investigators often ignore these knowns–in following orders to believe the “victim” and through confirmation bias.

Yet some persistent in denying this happens and presume guilt and follow confirmation bias to the desired conclusion.

Occasionally, the truth comes out. Thus this release from the federal prosecutors in Virginia.

A Chesapeake woman pleaded guilty today to lying to Naval Criminal Investigative Service (NCIS) investigators about an alleged sexual assault that occurred aboard Naval Station Norfolk. According to court documents, in July 2018 Miranda H. Overton, 21, made a report to NCIS alleging that an active duty Navy sailor sexually assaulted her. After opening an investigation into the alleged assault, the alleged perpetrator was interviewed, and he explained that he had consensual sex with Overton after they met on an online dating application. Investigators then obtained surveillance video from the day of the alleged assault revealing that Overton and the sailor kissed in the elevator immediately prior to the alleged assault. Furthermore, investigators obtained Overton’s statement during her sexual assault forensic examination where she admitted that prior to meeting with alleged perpetrator they agreed to have sexual intercourse. Investigators subsequently interviewed Overton a second time during which she admitted her allegation was false and had made another false allegation in the past. Overton admitted that she fabricated the allegation out of fear that her significant other would end their relationship if the significant other became aware that Overton had sex with the sailor. (Emphasis added.)

The statement of facts submitted to the court is available on PACER and contains additional facts of importance.

Woman-pleads-guilty-false-statement-regarding-sexual-assault[.]

• Get the SANE exam. There is quite a bit of possible information in the report valuable for defense.
• Get the CCTV or other video. You may be lucky.

This is an interesting discussion from another country on something we are familiar with.

It will be recalled that the right to silence formerly comprises the privilege against self-incrimination and the right not to have adverse inferences drawn from his silence. Prior to the CJPOA, no evidential significance could be attached to an accused’s exercise of the right to silent, save when the accused and the victim were on even terms. However, theprovisions in the CJPOA, particularly ss 34-35 have sought to alter this principle to the extent that the question that this essay grapples with, is whether the right to silence,despite the changes, is still useful in protecting an accused’s supposed ‘constitutionalright’ of innocence, until proven guilty.

We are familiar with this–

Police Interview– a search for truth or guilt? To start with, current police interviewing guidelines describe the investigative interview as a ‘search for truth’. But this assumption to some academics is itself mired. As Kelly Benneworth-Gray argues, ‘truth’ and ‘honesty’ are locally invoked interactional resources, produced, recognised and contested in two very different sequential environments. The upshot of this is that regardless of the offer of truth made by the accused, the main purpose of a police interview is to mark a disjuncture between the testimonies of the suspect and the alleged victim and construct the suspect’s testimony as implausible.

This matter is a pro se petition for habeas corpus filed under 28 U.S.C. § 2241. Petitioner was granted leave to proceed in forma pauperis. Because Petitioner is confined at the United States Disciplinary Barracks in Fort Leavenworth, Kansas, this matter was transferred to this Court from the District of North Dakota. Petitioner seeks to set aside his 2012 conviction by general court-martial, based on the holdings in United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016) and United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017). Petitioner, a former active duty member of the United States Air Force, was tried in September 2012 by general court-martial at Minot Air Force Base, North Dakota. Contrary to his pleas, Petitioner was convicted of one specification of rape, three specifications of aggravated sexual assault, and one specification of forcible sodomy, in violation of Articles 120 and 125 of the Uniform Code of Military Justice (“UCMJ”), 10 U.S.C. §§ 920, 925. Petitioner was sentenced to a dishonorable discharge, confinement for twelve years, forfeiture of all pay and allowances, and a reduction to the grade of E-1. On March 1, 2013, the convening authority approved the sentence.

Factually it’s a sexual assault case common to our practice.

The conviction and sentence was affirmed through the normal military appellate process. After Hills was decided Coleman filed a coram nobis with AFCCA which was denied and CAAF summarily denied the writ-appeal petition.

In USDC Coleman sought retroactive application of Hills and Hukill.

The DC court states the rule

Petitioner’s conviction is final, and his current habeas case is before the Court on collateral review. When a decision results in a new rule, “that rule applies to all criminal cases still pending on direct review,” but “[a]s to convictions that are already final . . . the rule applies only in limited circumstances.” Schriro v. Summerlin, 542 U.S. 348, 351 (2004) (citation omitted).

The first exception to non-retroactivity is for new substantive rules which may be applied retroactively. Coleman loses on this basis.

A more limited exception for procedural rules is one that is a “watershed [change] to rules of criminal procedure” which implicate both the accuracy and “the fundamental fairness” of the criminal proceeding. Teague, 489 U.S. at 311-15. To qualify as a watershed rule, it must meet two requirements: First, the rule must be necessary to prevent an impermissibly large risk of an inaccurate conviction; second, the rule must alter our understanding of the bedrock procedural elements essential to the fairness of the proceeding. Coleman loses on this basis also.

As appellate counsel know, USDC Kansas and the 10th sees the bulk of military collateral challenges. The law in the circuit is very deferential to the results of a military conviction and appeal.

I. Introduction American prosecutors are generally understood to have a lot of power, and that power is often the subject of criticism. But whether American prosecutors’ power is problematic depends on the structure and operation of other components of the criminal justice system the code defining substantive offenses, the capacity and competency of police and investigative agencies, the law of sentencing, the typical mode of adjudication (trials or pleas), prison capacity, and funding levels for enforcement officials and courts.Prosecutors are empowered by some of these other actors and institutions, and they are constrained by others. Positive law gives prosecutors considerable power, especially by granting broad charging discretion, but it also limits that power in a couple of significant respects. Moreover, the mix of prosecutors’ powers, and potential for abuse of power,varies across American jurisdictions. Federal prosecutors are limited in important ways that state prosecutors are not, especially as to plea bargaining. Likewise, state prosecutors face constraints that their federal counterparts do not, particularly as to charging discretion. Whether prosecutor power is problematic depends on other components of the criminal justice system in which that power is exercised. In turn, the flaws of American criminal justice, in turn, arise as much from institutional arrangements that are ill-suited for particular prosecutorial powers as they do from those powers per se.

My first was a client I was representing on appeal who hung himself in the SHU at the USDB. Sadly, I’d gotten the Dubay judge’s findings and conclusion which lead me to think he was getting a new trial. He died not knowing that. I’d written to him telling him what I thought would be good news. The mail room allegedly refused to give him that letter which lead to a chain of events ending with him in the SHU.

We all have to be sensitive to clients in distress. Sometimes it’s hard to tell if the client is experiencing the “normal” stresses of being in trouble.

IMHO the military is not set up to deal with the suicidal clients. Rather, and especially in sexual assault cases, the military casts the person aside; there are even some out there who encourage commanders and leaders to cast the accused aside, ignore them, and treat them as convicted “dirtbags.” Isolation from the unit, friends, and others is a potential breeding ground for a client’s mental health issues to become severe.

If you have a client you think is in personal danger to their own health you must consider getting that person help. Unfortunately that’s a potential problem for the case–client confidentiality, mental health privilege, and the possibility of pretrial confinement questions arise. if you have that situation and don’t know how best to deal with it–give me a call. I don’t have all the answers but I can help talk your way through it.

https://www.ghpage.com/prince-yeboah-wiredu-ghanaian-usa-army-officer-convicted-rape-court-martial/103816/

Prof. Boyne (Indiana U., Robert H. McKinney Sch. of Law), has an interesting read.

Does this seem familiar?

In the past two decades, scholars have not only questioned whether the “contest”between the parties is a fair one, but also debated whether prosecutors possess a “conviction mentality” that undermines their duty to pursue justice.

Do we not have politicians and media fostering this attitude of conviction first facts later? Are prosecutors like the Queen in Lewis Carroll’s Alice in Wonderland.

I’m of the view that aggressive pretrial work–through motions practice, for example, is a must for military defense counsel to perhaps short-circuit the case or prepare better ground if there is to be a trial.

In this article, I compare pre-trial procedures in Germany and the United States and specifically probe the extent to which prosecutor’s decision-making practices deviate from each system’s normative goals. In both countries, the daily practice of the key players in both criminal justice systems continues to shift as the result of ever-increasing resource-constraints and varied organizational incentives. These shifts have created area of both convergence and divergence. On the one-hand, in an era in both countries in which the number of cases resolved through a full-fledged public trial is decreasing, the course of pre-trial practice has become more outcome-determinative. Faced with a heavy caseload, a German prosecutor who receives a file in which the initial fact appear to be weak, may dismiss the case right out of the gate. On the other hand, carrying the mantle of a “party” rather than as an “organ of justice,” an American prosecutor who views the same investigation file may be more likely to seek some level of conviction through a plea agreement. Viewed solely through the goal of “finding the truth,” the shortened investigation process in both cases raises questions about whether the outcome fulfilled the retributive and rehabilitative objectives of the criminal law. On the other hand, in an era of tight resources, both outcomes appear to efficiently resolve the dispute at issue. In both cases, the shortened process also impacts, and perhaps undercuts, the traditional role of the fact-finder, be it a jury in the United States or a German judicial panel.Consequently, in many cases, bureaucrats in both countries are functioning as the arbiters of justice rather than simply as the head of the investigation process. Even though the percentage of cases that are resolved through trial has dwindled, an adversarial outlook may shape the parties’ behavior during the pre-trial process. Indeed,neither a prosecutor’s refusal to disclose exculpatory evidence nor a defense counsel’s search for “dirt” to damage witnesses is likely to bring the investigation closer to the “truth.” In both cases, the rules that exist to curb the parties’ out-of-bounds behavior sometimes fails to guarantee that the process will serve the ends of justice. Despite the fact that defense counsel has a right to access whatever exculpatory evidence that the prosecution team has in its possession, prosecutors’ failure to disclose exculpatory evidence has been a significant factor in many wrongful conviction cases. As Peter Joy states: Some of the other factors leading to wrongful convictions, such as mistaken identification, are more prevalent, but suppression of exculpatory evidence is especially troubling because it serves to derail the truth-seeking process of the criminal justice system. Rather than the adversarial process working as intended,the suppression of exculpatory evidence either leads some innocent defendants to plead guilty or denies the fact finders the ability to reach just verdicts in cases that go to trial.

More than thirty years ago, Professor Damaška offered his seminal contribution to comparative criminal procedure by demonstrating that serious comparative understanding, for the purpose of fruitful communication among legal traditions and of a better grasp of domestic procedural systems, requires a simple analytical tool. Damaška moved beyond the old taxonomy based on the over-used dichotomy of accusatorial v inquisitorial procedures, which carries with it a multiplicity of referents, and as a result proving itself incapable of a clear contraposition between the two types of procedure. Damaška articulated the core contrast between contemporary common law and continental criminal procedures as involving alternative patterns of distributing procedural control. His observation of the systems in action located the essence of the common law style, ie of the adversary model, in the allocation of control over the proceeding to the conflicting parties of the dispute. He thus pointed to a sharp contrast with the fundamental matrix of the continental style, ie of the non-adversary model, where that same control is allocated to non-partisan officials. Where parties monopolise procedural action, the process takes the form of a contest between the prosecution and the defence; on the contrary, where the judge or some other official is in charge, the process turns into an enquiry into the alleged commission of a crime.

Tokson, Matthew J., The Emerging Principles of Fourth Amendment Privacy (July 23, 2019). George Washington Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3425321

Wexler, Rebecca, Evidence in the Age of Privacy: Access to Data in the Criminal Justice System (July 29, 2019). Available at SSRN: https://ssrn.com/abstract=3428607 or http://dx.doi.org/10.2139/ssrn.3428607

Excerpts from a letter which the Powell Committee recommended The Judge Advocate General of the Army send to officers newly appointed as general court-martial convening authorities. (Committee on the Uniform Code of Military Justice, Good Order and Discipline in the Army: Report to Honorable Wilber M. Bruckner, Secretary to the Army, 17–21 (18 Jan 1960)).

Should the TJAGs also send a “letter to self?”

Their study suggests that 37% of wrongful convictions result from confirmation bias.

Table 1: Causal Factors (≥ 10) Causal Factor

Confirmation bias 37 Tunnel vision 24 High-profile crime/media attention 23 Management/supervision issues 22 Careless/incompetent investigation 20 Improper interrogations 20 Rush to judgment 19 Flawed forensics 15 Problematic witness/informant 14 Evidence analysis/logic failure 12 Interagency conflict/DA interference 10

Welcome to military sexual assault investigations and prosecutions.

confirmation bias, in particular, held a pivotal position in the causal structure of wrongful convictions. Faulty assumptions, probability errors, and groupthink often played supporting roles. Cognitive bias affects not just investigators, but also prosecutors, defense lawyers, scientists, military leaders, politicians-indeed, everyone.

“Believe the victim” and victim-centric interviews and investigations require the application of cognitive/ confirmation bias–IMHO deliberately. A presumption of guilt follows which reinforces CB.

Confirmation bias is a type of selective thinking. Once a hypothesis has been formed, our inclination is to confirm rather than refute it. We tend to look for supporting information, interpret ambiguous information as consistent with our beliefs, and minimize any inconsistent evidence. Types of confirmation bias include: (1) the biased search for evidence; (2) the biased interpretation of information; and (3) a biased memory (selective recall). Confirmation bias can cause a detective to interpret information in a biased manner-evidence that supports the investigative theory is taken at face value, while contradicting evidence is skeptically scrutinized. Other manifestations of confirmation bias include the failure to search for evidence that might prove a suspect’s alibi, not utilizing such evidence if found, and refusing to consider alternative hypotheses.

https://www.armfor.uscourts.gov/newcaaf/opinions/2018OctTerm/180372.pdf,

just decided by the U. S. Court of Appeals for the Armed Forces.

In Voorhees, the trial counsel (prosecutor) tried to establish his bona fides with the court members during voir dire. Which lead the Court to say:

Despite his self-described expertise, trial counsel’s findings and rebuttal arguments were riddled with egregious misconduct, much of which amounted to clear, obvious error. We are most concerned with trial counsel’s: (1) personal attacks on defense counsel; (2) personal attacks on Appellant; and (3) expressing personal opinions, bolstering, and vouching. We address each in turn (which the Court did). First, trial counsel accused defense counsel of “misplaced lying,” and made the defense theory of the case seem fantastical, saying “defense counsel’s imagination is not reasonable doubt.” Both statements amount to clear, obvious error.

A reasonable observer must ask, why did the prosecutor not know that and refrain from such conduct. (Note that it’s unusual for the appellate courts to name the trial counsel.) Later the Court quotes some of the language used during argument concluding, again, that “These statements are all clear and obvious error.”

Regardless, the Court said, “Although trial counsel’s misconduct amounted to grievous error,” they were not prejudicial because the evidence against the accused was overwhelming, the defense counsel didn’t object, and the trial judge did not sua sponte object and caution the trial counsel. So, the conviction was affirmed. The Court observed that,

Although the law precludes us from finding plain error, trial counsel’s performance in this case was not one we would expect from any lawyer, let alone a “senior” trial counsel. . . . Trial counsel, however, was not the sole attorney at fault during Appellant’s court-martial. As we admonished in Andrews, “Military judges are neither mere figurehead[s] nor are they umpire[s] in a contest between the Government and accused;” they too have a “sua sponte duty to [e]nsure that an accused receives a fair trial.” 77 M.J. at 403–04 (alterations in original) (internal quotation marks omitted) (citations omitted). The military judge in Appellant’s case simply allowed trial counsel to ramble on with his improper argument. Similarly, although defense counsel’s failure to object appears to have been a conscious and tactical choice in the instant case, we remind all defense counsel they “owe[s] a duty to the[ir] client[s] to object to improper arguments early and often.” Id. at 404. . . . This case aside, the consistent flow of improper argument appeals to our Court suggests that those in supervisory positions overseeing junior judge advocates are, whether intentionally or not, condoning this type of conduct. As superior officers, these individuals should remind their subordinate judge advocates of the importance of the prosecutor’s role within the military justice system and should counsel them to “seek justice, not merely to convict.” . . . Although the law precludes us from finding plain error, trial counsel’s performance in this case was not one we would expect from any lawyer, let alone a “senior” trial counsel.

On appeal to AFCCA that court set aside the finding of guilty to sexual assault, leaving an Article 133 conviction in place. The court remanded for a new sentencing hearing, after which the case went back to AFCCA and then to CAAF.

On initial appeal.

https://afcca.law.af.mil/afcca_opinions/cp/voorhees-38836.u_corrected_copy.pdf

After the sentence rehearing.

https://afcca.law.af.mil/content/afcca_opinions/cp/voorhees_-_38836reh.u.pdf

[T]he Alaska Supreme Court in Doe v. Alaska Department of Public Safety, No. 7375 (Alaska June 14, 2019) decided that part of its state’s Sexual Offender Registration Act violates due process. Here is how the majority opinion starts and concludes:

This appeal presentstwo questions concerning theAlaska SexualOffender Registration Act (ASORA). The first is whether ASORA’s registration requirements may be imposed on sex offenders who have moved to the state of Alaska after committing sex offenses elsewhere. The second is whether ASOR Aviolates due process by requiring all sex offenders to register without providing a procedure for them to establish that they do not represent a threat to the public. We conclude that ASORA’s registration requirements can constitutionally be applied to out-of-state offenders. We also conclude that ASORA violates due process, but its defect may be cured by providing a procedure for offenders to establish their non-dangerousness…. The superior court correctly concluded that Doe must register under ASORA. ASORA has effects that are both punitive and regulatory in nature. The superior court also correctly recognized that registration may seriously affect Doe’s liberty interests. But the court did not strike a proper balance between Doe’s liberty interests and ASORA’s public safety purposes when it concluded that ASORA may be applied to Doe without affording him the right to a hearing to show that he does not pose a risk to the public sufficient to require continued registration. Doe’s affected liberty interests are fundamental and thus protected from infringement by state action except under a narrowly drawn statute reasonably designed to achieve a compelling state interest. If Doe can show at a hearing that he does not pose a risk requiring registration, then there is no compelling reason requiring him to register, and the fact that ASORA does not provide for such a hearing means that the statute is unnecessarily broad. The flaw in ASORA identified in this case is that it does not provide Doe with an opportunity to be heard. This can best be cured by providing him with such an opportunity.

Note, an accused may not automatically get credit for time spent in civilian jail–that needs to be litigated at trial. See United States v. Harris, __ M.J. ___, 2019 CAAF LEXIS 361 (C.A.A.F. 2019).

Which brings us to United States v. Howell, NMCCA, 2019. On appeal, Howell argued that the prosecution wrongly argued to nullify his pretrial confinement credit.

Note: trial defense counsel did not object at trial! So, the NMCCA reviewed for plain error. Slip op. at 10. See United States v. Halpin, 71 M.J. 477, 479 (C.A.A.F. 2013); United States v. Pabelona, 76 M.J. 9, 11 (C.A.A.F. 2017).

The NMCCA cited United States v. Balboa, 33 M.J. 304 (C.M.A. 1991) for the proposition that the sentencing authority may consider pretrial confinement as mitigation or aggravation. Slip op. at 13. Ultimately the NMCCA found no error and gave no relief. But again, trial defense counsel had not objected.

Based on our superior court’s holding in Balboa, we cannot say that it was plain error for the trial counsel to argue that the members should increase their sentence to confinement for the express purpose of nullifying the Allen credit determined by the military judge in order, ostensibly, to permit the appellant to complete five years of treatment. Notwithstanding the C.A.A.F.’s language in Balboa, however, we would not condone a trial counsel’s effort to “appeal” a military judge’s Allen or Article 13 credit determination to members. Our holding might be different in a case where the issue was properly preserved for appeal.

In Balboa, Senior Judge Everett observed:

It seems curious (and more than coincidental) that the confinement adjudged was “68 days, plus 12 months”—not 14 months or 15 months—when the court-martial members knew that their announced sentence to confinement would be reduced by precisely 68 days. This Court does not need an appellate crystal ball to discern the real likelihood that, as a practical result of the members’ action, appellant has been denied the legally required credit for his pretrial confinement.

Balboa, 33 M.J. at 307-08 (Everett, S.J., concurring).

It would seem that the current law may now be that while an accused should get credit for PTC, it is not required if the sentencing authority doesn’t think it appropriate. We’ll have to see if the issue comes up again similar to the facts of Howell with a defense counsel objection. I would imagine Navy TCAP will make much ado about Howell and you may well see the issue again.

So, consider,

• Asking the MJ not to advise the members of any pretrial confinement credit?
• Move in-limine to prohibit TC arguing for nullification? Note, Howell is a retrial case. So it’s possible that there will be significant PTC in any retrial case. My other concern is that the advice to members about PTC gives them information or guidance on what the prior trial adjudged–something not raised in Howell.
• Object!

Issues: (1) Whether the U.S. Court of Appeals for the 4th Circuit erred when it found no constitutional error when the state failed to disclose Brady evidence, a letter from a jailhouse snitch, until the post-trial hearing for a motion for a new trial; (2) whether the state and federal courts’ decisions were contrary to Giglio v. United States, United States v. Bagley, Brady v. Maryland and Napue v. Illinois when the state failed to disclose material impeachment evidence, a letter from a jailhouse snitch who testified that petitioner confessed to him; and (3) whether the state and federal courts erred in finding that trial counsel rendered effective assistance of counsel when he failed to interview Michael Jones and call him as a witness.

More information, including the petition at SCOTUSBlog here.

United States v. Frost, No. 18-0362/AR

Issue: Whether the military judge erred in admitting hearsay statements as prior consistent statements under Mil.R.Evid. 801(d)(1)(B)(i) where the defense theory posited the improper influence or motive preceded the allegedly consistent statements.

Case Links: • ACCA opinion • Appellant’s brief • Appelllee’s (Gov’t Div.) brief • Appellant’s reply brief

The Court will hear oral argument, in this case, tomorrow (9 April 2019). It’s an important case. Whenever the defense questions a prosecution witness, especially a complaining witness, the prosecution then offers every statement, oral or written, the witness made. The judge usually agrees the statements are admissible–thus, there’s a huge hole, IMHO, in the prosecutions right to rehabilitate a witness. I should note that the rule applies equally to a defense witness including the accused. So if you have an accused who wants to testify and he did a good MCIO interrogation, consider the value of then offering that interview once the prosecution has engaged in cross-examination.