The general standard of review for a government certificate for review under the Uniform Code of Military Justice (UCMJ) is governed by Article 67(a)(2), UCMJ (10 U.S.C. § 867(a)(2)), which grants the U.S. Court of Appeals for the Armed Forces (CAAF) jurisdiction to review decisions of the service courts of criminal appeals (CCAs) upon certification by the Judge Advocate General (JAG) of the respective service.

Standard of Review for Government-Certified Issues

1. De Novo Review for Legal Issues:
   • CAAF generally applies a de novo standard of review when considering legal issues presented under a certificate for review. This applies to questions of statutory interpretation, constitutional law, and other legal determinations made by the lower courts.
   • See United States v. Wilkins, 71 M.J. 410 (C.A.A.F. 2012) (“Questions of law are reviewed de novo.”).
2. Deference to Factual Findings:
   • When the case involves factual determinations by the service courts of criminal appeals (CCAs), CAAF generally applies a clearly erroneous standard. The court gives deference to the lower courts’ factual findings unless they are unsupported by the record or clearly erroneous.
   • See United States v. Burris, 78 M.J. 280 (C.A.A.F. 2019) (“We will not overturn the factual determinations of the lower court unless they are clearly erroneous or unsupported by the record.”).
3. Abuse of Discretion for Procedural and Evidentiary Rulings:
   • When reviewing matters involving procedural decisions, evidentiary rulings, or discretionary rulings by the trial court (such as rulings on expert witnesses, sentencing decisions, or admission of evidence), CAAF applies an abuse of discretion standard.
   • See United States v. Feliciano, 76 M.J. 237 (C.A.A.F. 2017) (holding that evidentiary rulings are reviewed for abuse of discretion).

Limitations on CAAF’s Review Authority

• CAAF’s review is limited to the specific issues certified by the JAG unless the accused also files a petition for review on separate issues under Article 67(a)(3), UCMJ.
• If the CCA’s decision is based on independent grounds not related to the certified issue, CAAF may decline to rule on the issue.
• CAAF does not generally reweigh evidence or substitute its judgment on witness credibility unless there is a legal deficiency.

Precedents from CAAF Regarding Government Certificates of Review

• United States v. Upham, 66 M.J. 83 (C.A.A.F. 2008): CAAF’s authority under a government certificate of review is limited to the specific issues certified by the JAG.
• United States v. Adams, 63 M.J. 223 (C.A.A.F. 2006): The lower court’s ruling will generally be upheld unless it is “arbitrary, capricious, or an abuse of discretion.”
• United States v. Jones, 78 M.J. 37 (C.A.A.F. 2018): When a case presents a mixed question of law and fact, the legal conclusions are reviewed de novo, while the factual findings are reviewed for clear error.

Conclusion

When CAAF reviews a case under a government certificate of review, it generally applies:

• De novo review for pure legal questions.
• Clearly erroneous standard for factual determinations.
• Abuse of discretion standard for procedural and evidentiary matters.

An important issue in such “appeals” is whether the prosecution is asking CAAF to find new facts or reinterpret the facts–its complex, and something we as military defense lawyers are familiar with.

A key appellate case supporting the proposition that the Court of Appeals for the Armed Forces (CAAF) does not generally reweigh evidence or substitute its judgment on witness credibility unless there is a legal deficiency is United States v. Wheeler, 76 M.J. 564 (C.A.A.F. 2017).

Rule from Wheeler (2017)

In United States v. Wheeler, CAAF reaffirmed that it does not engage in reweighing evidence or making independent determinations of witness credibility, stating:

“It is the duty of the factfinder, not this Court, to determine the credibility of witnesses and weigh the evidence presented at trial. We will not disturb such findings unless there is a clear legal error or the findings are unsupported by the record.”

— United States v. Wheeler, 76 M.J. 564, 568 (C.A.A.F. 2017).

Other Supporting Cases

• United States v. Rosario, 76 M.J. 114 (C.A.A.F. 2017):
  • Held that CAAF does not reassess credibility determinations unless there is a legal deficiency, noting that the fact-finder’s determinations are given great deference unless unsupported by the record.
• United States v. Beatty, 64 M.J. 456 (C.A.A.F. 2007):
  • Stated that appellate courts do not reweigh evidence but rather assess whether the court below had a basis in law and fact for its conclusions.
• United States v. Satterly, 74 M.J. 544 (C.A.A.F. 2015):
  • Affirmed that CAAF does not second-guess factual findings or witness credibility assessments unless they are “clearly erroneous” or based on incorrect legal standards.

Conclusion

CAAF follows the principle that credibility determinations and factual findings rest with the factfinder (trial court or CCA), and appellate review is limited to assessing whether there was a legal deficiency, such as insufficiency of evidence, misapplication of law, or due process violation. The case of United States v. Wheeler, along with Rosario and Beatty, directly supports this appellate principle.

A most interesting questions is what can CAAF review and how may it do that when a CCA has dismissed a charge because it is not factually sufficient to support a finding of guilty–stated another way, the appeals court is saying the person should not have been found guilty. The Government likes to certify these cases because it doesn’t like the result.

When the certified issue relates to a Court of Criminal Appeals (CCA) finding of factual insufficiency, the U.S. Court of Appeals for the Armed Forces (CAAF) applies a deferential standard of review and does not reassess the factual sufficiency of the case de novo. Instead, its review is limited to determining whether the CCA applied the correct legal standard and whether its decision is clearly erroneous or unsupported by the record.

Standard of Review for a CCA’s Factual Insufficiency Determination

Under Article 66(d), UCMJ (10 U.S.C. § 866(d)), CCAs are required to conduct a factual sufficiency review by independently weighing the evidence and determining whether the conviction is correct beyond a reasonable doubt. If a CCA finds the evidence factually insufficient and sets aside a conviction, CAAF’s review of that decision is highly deferential.

• United States v. Washington, 57 M.J. 394 (C.A.A.F. 2002):
  • CAAF does not have the authority to review a CCA’s factual sufficiency determination de novo. Instead, it reviews whether the CCA applied the correct legal standard and whether its factual determination is clearly erroneous.
  • “Once the Court of Criminal Appeals determines that the evidence is factually insufficient, we are bound by that determination absent clear error or application of an erroneous legal standard.”
• United States v. Smith, 76 M.J. 524 (C.A.A.F. 2017):
  • Reaffirmed that CAAF does not reweigh evidence or reassess credibility when reviewing a CCA’s factual sufficiency determination.
  • “The Courts of Criminal Appeals have unique fact-finding powers under Article 66, UCMJ, which we do not disturb unless their decision is clearly erroneous or based on a misapplication of the law.”
• United States v. Nerad, 69 M.J. 138 (C.A.A.F. 2010):
  • Held that CAAF’s review of a CCA’s factual sufficiency determination is limited to ensuring that the CCA applied the correct standard under Article 66, UCMJ, and does not substitute its own judgment for that of the CCA.

Key Points About CAAF’s Standard of Review in Certified Cases Involving Factual Insufficiency

1. Highly Deferential Standard:
   • CAAF does not reassess factual sufficiency but only reviews whether the CCA applied the correct legal standard.
2. Clearly Erroneous Review:
   • CAAF will only reverse a CCA’s finding of factual insufficiency if it is clearly erroneous or unsupported by the record (Washington, Smith).
3. Legal Standard Review:
   • If a CCA misapplies Article 66(d), UCMJ, or fails to properly conduct a factual sufficiency review, CAAF can intervene (Nerad).

Conclusion

If a government certificate for review challenges a CCA’s factual insufficiency determination, CAAF does not reweigh the evidence but only ensures the CCA applied the correct legal standard and that its decision was not clearly erroneous. This principle has been upheld in Washington, Smith, and Nerad.

Would you like a case-specific analysis or further discussion on a particular aspect–contact the military defense lawyers at Cave & Freeburg, LLP, and we’ll see if we can help.

He had been convicted and sentenced to 14 years of confinement.

We raised many issues during his appeal. The Army Court found a serious error by the military judge in denying the defense presenting evidence of other sexual acts of the alleged victim. This issue usually comes up in a Military Rule of Evidence 412 motion. Here, the military judge botched it.

Basically the rule prohibits witnesses or cross-examination about prior sexual behavior of the alleged victim. However, there are exceptions: (1) the evidence shows someone else did it or caused physical injuries. For example, consensual sex–any sexual penetration–can cause physical injury to the vagina, so the alleged victim having had sex with another person the day before the alleged assault could be admissible as an exception; (2) because the conduct is what is called res gestae (all part of the same acts or events); (3) when the Constitution requires it. For example, to present evidence of mistake of fact as to consent, or significant attacks on the credibility of the alleged victim. As military defense lawyers, we have a lot of experience litigating these issues and also have experts who can assist in presenting the case.

The Army court touched on other issues in connection with how the prosecutor and special victim’s counsel conducted the case.

Because the error was so prejudicial, the charges have been dismissed. The next step is whether the prosecution will appeal or whether there will be a new trial.

Retrials are difficult. As military defense counsel, we have done retrials. All the prior discovery, evidence, and witnesses have to be gathered up so that both sides can prepare for trial. Because retrials are difficult, the Army has created a specialized organization at Fort Leavenworth to work on these cases.

The civilian attorney for a cruiser skipper fired for cruelty and mistreatment of her crew told a board of inquiry in his opening statement Tuesday that his client had been the victim of a sexist and vengeful wardroom of incompetent officers and an inspector general’s investigation with a foregone conclusion.

Prior posting about this and other CO firings here and here.

Navy Times also reports:

The commanding officer of the Coast Guard’s New London station said Tuesday he was relieved of his post after he was pulled over for speeding and a breath test found he was slightly over the limit for alcohol.

The Pentagon study on the DADT policy is here.

A U.S. soldier was taken into custody after an Afghan detainee was found dead in his cell, apparently from a gunshot wound, NATO said in a statement Tuesday night.

Military.com reports:

An American Soldier was charged Wednesday with killing two fellow U.S. troops and wounding a third after an argument last month in a former Iraqi insurgent stronghold turned deadly. Army Spc. Neftaly Platero was charged with two counts of murder and one count of attempted murder in a Sept. 23 shooting in Fallujah, about 40 miles (65 kilometers) west of Baghdad.

Military.com reports:

Army Spc. Tyler Ellingboe recently noted on his Facebook page that he won’t be home for Christmas. “I will not be taking leave and will not be leaving Alaska,” he wrote. “Short on money and I have too much on my plate right now.” Ellingboe and fellow Soldier Sgt. Alexander Valdez are under investigation by the Army as a result of their actions around handcuffing and attempting to place a journalist under citizen’s arrest after he attempted to question Joe Miller, a Tea Party candidate in Alaska’s U.S. Senate race. The Army is looking into whether the two Soldiers’ conduct was proper as they took on the role of civilian security guards.

Navy Times reports:

A Coast Guard petty officer charged in a fatal boat collision in San Diego Bay last December was arraigned in a military court Thursday. Boatswain’s Mate 3rd Class Paul Ramos, 21, did not enter a plea during the hearing, held at Naval Base San Diego before a Coast Guard judge based in Alexandria, Va., who presided over the hearing via video teleconference. Ramos made no statement to the judge, Capt. Gary Felicetti.

Note the use of VTC to do the arraignment.

Navy Times reports:

The top sailor on the amphibious transport dock ship New York was fired Thursday in Norfolk for fraternizing with a female shipmate, Naval Surface Force Atlantic said.

Navy Times reports:

Federal investigators were mistaken when they claimed that a Coast Guard crew member sent text messages just before his boat collided with another vessel and killed an 8-year-old boy before a holiday boat parade in San Diego Bay. The National Transportation Safety Board reported in August that Petty Officer 3rd Class Lavelle Teague made and received six texts only 10 to 15 minutes before the Dec. 20 crash. A revised memo issued in September says the texts were made hours earlier, attributing the error on a time zone difference in phone records.

Huuum, wonder what else is messed up in the case?

Army Times reports the Diamond case is over:

A military appeals court won’t consider an appeal from a former Fort Bragg soldier convicted of killing his lover’s husband, who was a pilot at a neighboring Air Force base. The Fayetteville Observer reported Wednesday the Court of Appeals for the Armed Forces rejected John Diamond’s petition.

Sign of San Diego has this interesting point:

At the prosecution’s request, the judge will issue a partial gag order on the lawyers. Neither side will be able to make background or off-the-record comments, and a court-appointed officer will review press releases before they are issued.

You’ll remember I’ve posted about the release of the UCMJ Article 32 IO’s report. What I find interesting is that the parties will be banned from media disclosures, but not the prosecution. Think about it, the United States is the party prosecuting the case. So how come the United States can issue media releases? So, the United States, the prosecutors, get to issue media releases but have effectively barred the defense from responding to erroneous press releases from the prosecution or for that matter prosecution press releases. Not good. I hope the defense objected to this imbalanced procedure.

The Coast Guardsman piloting the boat that killed 8-year-old Anthony DeWeese might have served a year or less in prison if his lawyers had pursued a plea deal dangled by the prosecution.

It is unclear how the emails surfaced publically.

The Coast Guard has ordered three petty officers to stand trial in a San Diego Bay crash that killed an 8-year-old boy during a holiday boat parade, an official said Oct. 6. Rear Adm. Joseph R. Castillo, commander of the 11th Coast Guard District, ordered the general court-martial after reviewing a report by the investigating officer, Coast Guard Lt. Cmdr. Rick Foster said. That report concluded there was no legal justification for the Dec. 20, 2009, crash, the Los Angeles Times has reported.

Ramos Charges Howell Charges Rasmussen Charges

Couple of interesting points.

Issues surrounding application and potential application of a privilege for safety investigations, a la Mil. R. Evid. 506.

(a) General rule of privilege. Except where disclosure is required by an Act of Congress, government information is privileged from disclosure if disclosure would be detrimental to the public interest.

The Article 32, UCMJ, hearing was closed over the objection of the defense. I’m not aware of any news media litigation about that, anyone?

The IO pointed out some potential mitigating factors to do with training and the boat construction. In the reports the IO says:

A major mitigating factor and arguably an intervening cause is the lack of leadership at Station San Diego. . . . Another mitigating factor is the Coast Guard’s failure to provide appropriate training and oversight for this type of vessel. . .

Two women testified at a military hearing Tuesday that they would not have had sex with an airman had they known he was HIV positive, and one said she believed him when he said he wasn’t because he was in the Air Force.

Professor Friedman has put up the transcript of argument in Michigan v. Bryant, a Crawford case.

Law.com has this item about prosecutorial misconduct cases in California.

Only a tiny percentage of prosecutors who engaged in misconduct were disciplined by the State Bar of California during a 12-year period, according to a report released Monday.

Fayobserver.com reports:

The Army has opposed an attempt by a former Fort Bragg soldier to have a military appeals court review his 2001 murder conviction. John Diamond, who was a staff sergeant when convicted in August 2001 of first-degree murder in the death of Air Force Capt. Marty Theer, is seeking a new trial and says the lawyers who represented him at his court-martial had a conflict of interest.

Signonsandiego reports:

The Coast Guard petty officer piloting the boat that killed an 8-year-old Rancho Penasquitos boy will face a general court-martial, while his two fellow crew members get lesser trials that mean a year or less in jail if convicted. The Coast Guard is now focusing the brunt of its prosecution on Petty Officer 1st Class Paul A. Ramos, 21, who will be tried at a general court-martial on charges of involuntary manslaughter, negligent homicide, aggravated assault and several lesser counts.

LA Times reports:

Three Coast Guard petty officers will be court-martialed for a 2009 fatal collision in San Diego Bay, the Coast Guard announced Wednesday. A fourth Coast Guard member will face a nonjudicial punishment process.

Daemonstv.com shows that hollywood can mimic real life.

Think Hennis? Think other cases, certainly I’ve had a couple that fit this bill as have my colleagues.

The cases on The Good Wife are always excellent; clever, unsentimental, often humorous. This week Alicia and Will went to court martial defending a soldier accused of murdering his wife. This was all thanks to Cary, who lost the case at state trial and called up a friend in JAG to retry the accused.

The Witchata Eagle reports:

A decision likely will be made in about two weeks about whether a McConnell Air Force Base sergeant accused of having sex without disclosing his HIV-positive status should face a court-martial. Tech. Sgt. David Gutierrez did not make a comment today during his Article 32 hearing, which is similar to a grand jury proceeding.

And no, it’s not similar to a grand jury. Unfortunately that erroneous comparison remains in the media lexicon.

A U.S. soldier accused of killing civilians in Afghanistan should face a court-martial on murder and other charges, an Army officer has recommended. The recommendation, included in a document obtained by CNN, comes after prosecutors laid out their evidence against Spc. Jeremy Morlock in a hearing last week. Morlock is one of five members of the Army’s 5th Stryker Brigade who have been accused of premeditated murder in a series of incidents between January and May. The recommendation goes to the brigade’s commander. It was contained in a document that summarized last week’s hearing at Joint Base Lewis-McChord, an Army-Air Force installation outside Tacoma, Washington.

Who released the IO report?

Base officials would not confirm the authenticity of the document, which has not been publicly released.

You will recollect that we have the recent unauthorized (?) release of the Article 32, UCMJ, report in the Coast Guard boating tragedy.

A U.S. Coast Guard investigating officer has found no legal justification for the deadly collision of a Coast Guard boat with a smaller vessel in San Diego Bay that killed an 8-year-old boy, the Los Angeles Times reported Monday.

San Diego 6 reports:

[The] investigating officer has rejected claims by three crew members that mechanical defects, poor training and lax leadership were responsible for a boat collision on San Diego Bay that killed an 8-year-old Rancho Penasquitos boy, according to an online report.

Also, it appears the report has been leaked because the Coast Guard PAO says it has not been publicly released; which makes sense.

Lawyers for the driver of a Coast Guard boat that killed an 8-year-old San Diego boy in December said the Coast Guard is prosecuting Petty Officer 3rd Class Paul Ramos in order to duck responsibility, and a lawsuit. “The family is rightly suing the Coast Guard,” said Navy Cmdr. Brian Koshulsky, one of Ramos’ military attorneys. “It’s in the Coast Guard’s interest to blame my client.” Seen through Ramos’ eyes, the Dec. 20 collision in San Diego Bay that killed Anthony DeWeese is a tragic accident caused by poor training and supervision by the Coast Guard and visibility design flaws in the 33-foot patrol vessel being used — all brought out by the harbor’s holiday lighting during a Christmas boat parade.

In regard to the boat design issue here is an NBC San Diego piece.

ccording to pool reports, when the boats’ engines run at 3,000 to 4,000 RPM the bows of the boats dip up. In that position, the driver and crew can not effectively see over the front of the bow, according to defense attorneys. Lawyers for the defendants said this problem is widely known among Coast Guard boatswains who serve on these small boats.

Here is a report by SDO which has some snippets of witness testimony. Witnesses appear to be alleging the Coast Guard boat was speeding, whereas the driver is claiming a speed of about 18MPH.

SDO also notes that:

The hearing will likely offer the most details yet on the mishap. The San Diego Harbor Police has refused to release its findings, and the Coast Guard and National Transportation Safety Board have yet to complete their investigations.

Three San Diego Coast Guard boat crew members will face the military version of a preliminary hearing beginning Tuesday for the Dec. 20 crash that killed an 8-year-old Rancho Peñasquitos boy. The top charge, involuntary manslaughter, is against Ramos. Howell and Rasmussen are charged with negligent homicide. Coast Guard officials have said it may be the first time in modern memory that any member of the Coast Guard has been charged with manslaughter for actions taken in the course of duty. A fourth boat crewman, Petty Officer 3rd Class Lavelle M. Teague, faces lesser charges. The Coast Guard announced Friday that Teague’s case is being handled separately.

No. 10-6010/CG. U. S., Appellant v. ANDREW L. DALY, Appellee. CCA 001-62-10. Notice is hereby given that a certificate for review of the decision of the United States Coast Guard Court of Criminal Appeals was filed under Rule 22 on this date on the following issues: WHETHER THE COAST GUARD COURT OF CRIMINAL APPEALS ERRED IN APPLYIING THE STANDARD OF FAIR NOTICE, AS OPPOSED TO MISTAKE OF LAW, IN AFFIRMING THE MILITARY JUDGE’S FINDING THAT, UNDER COAST GUARD REGULATIONS, THE ACCUSED WOULD NOT HAVE KNOWN HIS CONDUCT WAS CRIMINAL AND THEREFORE HE COULD NOT BE PUNISHED UNDE ARTICLE 134, UCMJ. WHETHER THE COAST GUARD COURT OF CRIMINAL APPEALS ERRED IN AFFIRMING THE MILITARY JUDGE’S RULING THAT THE ACCUSED LACKED NOTICE OF THE CRIMINALITY OF HIS CONDUCT UNDER ARTICLE 134, UCMJ, WHERE COAST GUARD REGULATIONS STATE THAT RESOLUTION OF THE CHARGED MISCONDUCT IS “NORMALLY ADMINISTRATIVE.” WHETHER THE COAST GUARD COURT OF CRIMINAL APPEALS ERRED IN AFFIRMING THE MILITARY JUDGE’S ORDER DISMISSING THE CHARGE AND SPECIFICATIONS, WHERE THE MILITARY JUDGE DENIED A MOTION FOR RECONSIDERATION AND FAILED TO HOLD AN EVIDENTARY HEARING TO DETERMINE WHETHER THE ACCUSED ACTUALLY RELIED ON COAST GUARD REGULATIONS BEFORE COMMITTING THE CHARGED MISCONDUCT.

The military judge made a clemency recommendation.

The SJAR failed to note the clemency recommendation.

The TDC failed to comment on the SJAR failure.

Phew! And here’s why.

Before this court, Appellant has assigned as error that Appellant was prejudiced by the omission of mention of the military judge’s recommendation for clemency in the Staff Judge Advocate’s Recommendation (SJAR). After announcing the sentence, the military judge recommended on the record that the Convening Authority suspend the bad-conduct discharge for a period of thirty-six months[.]

Aha,

Part II of the pretrial agreement contained a suspension provision, requiring the Convening Authority to suspend a punitive discharge for six months, at which point, unless sooner vacated, it would be remitted.

So now post-trial

Post-trial, neither the SJAR nor the SJAR Addendum mentioned the military judge’s recommendation. Trial defense counsel did not comment on the thirty-six-month suspension recommendation in his Rule for Courts-Martial (R.C.M.) 1105, Manual for Courts-Martial, United States (2008 ed.) submission. R.C.M. 1106(f)(6) provides, ―Failure of counsel for the accused to comment on any matter in the recommendation or matters attached to the recommendation in a timely manner shall waive later claim of error with regard to such matter in the absence of plain error.‖ If defense counsel does not make a timely comment on an omission in the SJAR, the error is waived in the absence of plain error. United States v. Halsey, 62 M.J. 681, 683 (C.G.Ct.Crim.App. 2006); United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000).

There’s more to read, but in this case there was plain error because regardless of TDC opportunity to comment the SJA is required to comment on a sentencer clemency recommendation, and in this case the appellant did better than the MJ recommendation.

The better practice is still for the TDC to make the point. On appeal the appellate counsel made this argument.

Appellant argues that he was prejudiced because the military judge’s ―unusual recommendation‖ was a strong message that he saw redeeming qualities in Appellant. He also contends that if the Convening Authority knew the military judge’s recommendation, then the Convening Authority might have decided to retain rather than administratively discharge Appellant1 or grant some other relief.

That argument didn’t sway CGCCA. But, what if it had been made to the CA post-trial? If the TDC had taken the point and argued it might there have been a different result. Methinks unlikely, but it should have been worth the effort.

Criminal charges ranging from involuntary manslaughter to dereliction of duty have been preferred by the Coast Guard against four boat crewmembers from Coast Guard Station San Diego in connection with a fatal collision between one of the station’s patrol boats and a civilian vessel in San Diego Bay late last year. The charges were brought under the Uniform Code of Military Justice (UCMJ) and are based on information discovered by the Coast Guard investigators looking into the December 20, 2009, collision that resulted in the death of one child and the injury of other passengers on the civilian boat. Rear Admiral Joseph Castillo, commander of the 11th Coast Guard District, is the convening authority in the case.

Navy Times reports the CG boat was:

speeding when it collided with a 26-foot Sea Ray pleasure boat.

Initially the accused was charged with violating a CG Personnel Manual regulation (about personal relationships) under Article 134, UCMJ. After some discussion of preemption issues (Dwight-san?), the charge was amended to remove the violation of a lawful order language. Then the defense challenged the charge on the basis of failure to state an offense and notice. After litigating the issue the military judge dismissed the charges, and the government appealed.

There is an interesting discussion of the CG Personnel Manual’s categorization of personal relationships into acceptable, unacceptable, and prohibited. Apparently the evidence put the accused’s conduct into the unacceptable. Unacceptable conduct is to be dealt with administratively only.

Before this court, Appellant has assigned two errors: (1) This court should consider the unreasonable and unexplained post-trial delay in determining the sentence that should be approved under Article 66(c); and (2) the promulgating order contains three errors. We grant sentence relief for post-trial delay and otherwise affirm. . . . Notable delays in post-trial processing are found in the fifty-nine days apparently taken by the military judge to authenticate the record, the seventy-seven days taken after receipt of the authenticated record to produce the SJAR and send it to defense counsel, and the twenty-eight days between Convening Authority action and sending the record to Headquarters. The Memorandum forwarding the record gives no meaningful explanation for these delays, attributing them only to “administrative processing.”

Note to defense counsel.

Appellant did assert the right to timely review twice before the Convening Authority. On both occasions, the Government took its next step within three days of Appellant’s assertion of right. The appearance is that Convening Authority action might have occurred far later but for Appellant’s reminders to the Government.

The court found no prejudice.

We turn now to Appellant’s argument: that we should grant sentence relief under United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002), which held that we may grant relief for excessive post-trial delay without a showing of prejudice. Id. at 224. Upon finding unreasonable and unexplained post-trial delay, this Court may consider such delay, along with all the other facts and circumstances, in exercising its responsibilities under Article 66(c), UCMJ. Id. We have granted such relief in several cases, most recently in United States v. Beaber (C.G.Ct.Crim.App. 15 April 2010) (unpub.), and before that in United States v. Greene, 64 M.J. 625 (C.G.Ct.Crim.App. 2007).

The former Coast Guard Sector Anchorage Commander was awarded the maximum allowable punishment at an Admiral’s Mast Friday and will retire on July 1 in the grade of lieutenant with a general discharge in lieu of trial by a general court-martial. Capt. Herbert M. Hamilton, III, was relieved of command in May 2009. An investigation conducted by the Coast Guard Investigative Service revealed that Hamilton had inappropriate relationships with several women, including officer and enlisted Coast Guard members, and civilians, over a period of more than 13 years. Hamilton also was charged with misusing government computers and cell phones; making false official statements; and soliciting an enlisted member to destroy evidence. His retirement as a lieutenant in lieu of trial by a general court-martial is the result of a pretrial agreement and Hamilton’s unsatisfactory service in the grades of captain, commander, and lieutenant commander.

Thanks to cgblog.org.

2. Hennis. I’m sure you are now aware that Hennis was convicted of three premeditated murder charges in less than three hours of deliberation. The sentencing part of the trial began today.

Military jurors began sentencing hearings Friday to determine if a soldier convicted of murder in the slayings of a North Carolina mother and her two children will get the death penalty or life in prison.

Here’s another interesting take on the prosecution of Hennis by an editor who believes he’s guilty.

WRAL.com has this “victim impact” information about the Hennis case.

3. Hasan has now arrived at Belton County Jail where he will likely stay until he is sentenced.

Maj. Nidal Hasan was airlifted from a San Antonio military hospital to the Bell County Jail in Belton about 4 a.m. Friday. He had been at the military hospital since shortly after the Nov. 5 shooting spree that left him paralyzed.

4. A fraud through faked service:

A man who falsely claimed a chestful of military medals was sentenced to a year in prison and was ordered to repay $11,098 in veterans benefits he shouldn’t have received. Thomas Barnhart, 59, had 21 years of legitimate Navy and Coast Guard service, including offshore duty in Vietnam. But starting in 1979, he began inflating his experience in claims for promotions and benefits, Assistant U.S. Attorney Jake Jacobsen told U.S. District Judge James Turk today in Roanoke.

5. You may have been following the issue of DoD wanting to shut down WikiLeaks, and in particular the issue of a recently released video of an Apache helicopter attack. Political Theatrics has this post.

Wikileaks released a 17-minute video on April 5th which depicted an Apache helicopter opening fire on a group of innocent Iraqi’s in New Baghdad in 2007; two of those killed were Reuters Journalists carrying their camera bags over their shoulders – Namir Noor-Eldeen, 22 and Saeed Chmagh, 40. On Monday evening, the Pentagon acknowledged and verified the legitimacy of the video.

Consortiumnews.com has another article on this subject.

Not only did a U.S. military helicopter gunship mow them down amid macho jokes and chuckling – after mistaking a couple of cameras for weapons – but the American attackers then blew away several Iraqis who arrived in a van and tried to take one of the wounded newsmen to a hospital. Two children in the van were badly wounded. “Well, it’s their fault for bringing their kids into a battle,” one American remarked.

6. Capital Flyer has more dire warnings on the career impact of a DUI.

7. FayObserver has this piece on the Pernell Article 32, UCMJ, hearing ongoing at Fort Bragg.

A Fort Bragg soldier accused of a rape and break-ins on post told an investigator he heard a voice in his head called Jason that told him to do “bad things,” according to testimony at an Article 32 hearing.

Last August, Travis Bishop refused to serve in Afghanistan. Having filed for Conscientious Objector (CO) status, Bishop, based at Fort Hood, Texas, in the US Army’s 57th Expeditionary Signal Battalion, was court-martialed and sentenced to 12 months in a military brig. He was released from the brig today.

Bishop served his time in Northwest Joint Regional Correctional Facility at Fort Lewis, Washington. This military brig is notorious for being a particularly difficult jail to serve time.

gazette.com reports that:

A Fort Carson soldier will face court martial next week in the Halloween rape of a woman on post last October, two months after the soldier’s return from his first deployment to Iraq.

Eyewitness News 3 reports that:

The first cadet ever court-martialed at the Coast Guard Academy in New London has lost another appeal. Cadet Webster Smith has filed a series of appeals since his conviction in 2006. Now, his only hope is to get his case in front of the United States Supreme Court.

United States v. Smith, 68 M.J. ___ (C.A.A.F. 2010).

Before this court, Appellant has assigned the following errors: I. The military judge erred when he denied the defense motion to dismiss Charges I and III for prior jeopardy. II. An unsuspended bad-conduct discharge is an inappropriately severe punishment for the crimes of which Appellant was convicted. III. Appellant’s Fifth and Sixth Amendment rights were denied when he was prohibited from recording the Article 32 investigation, and by the subsequent denial of his motion for a new Article 32 investigation. We exercise our Article 66, UCMJ authority and set aside the findings and sentence. Appellant was charged with Rape, arising from alleged conduct following a party while in the THETIS’s homeport of Key West, Florida. Following a contested trial, members found Appellant not guilty of the most serious charge of Rape, and found him guilty of only the Barbados criminal conduct for which he had already received punishment at Article 15 Captain’s Mast. Considering the facts of this case, we decline to reach the merits of the three Assignments of Error. Instead, we exercise our Article 66, UCMJ authority and set aside the findings in this case. We believe Appellant was appropriately punished for the criminal conduct at Barbados by the CGC THETIS Commanding Officer at Article 15 Captain’s Mast. Preserving convictions of the same (or lesser) offenses by court-martial does not strike us as necessary or attractive.