Results-Appeal-Continued

U.S. Supreme Court--been there

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In United States v. Weiss, we challenged the judicial appointment of all the Navy trial and appellate judges. We argued they needed to be legally appointed to their office under the Appointments Clause of the Constitution. That would require nomination to the office by the President and the Advice and Consent of the Senate. 

The Court of Appeals for the Armed Forces disagreed with the legal arguments. So we petitioned the U.S. Supreme Court--which granted the petition in Weiss v. United States. Unfortunately, SCOTUS agreed with CAAF that the judges were legally appointed as officers of the United States under the Appointments Clause of the Constitution, which meant they could legally serve as military judges without an additional appointment to the office. SCOTUS decided that they were properly appointed as commissioned officers of the United States. And making them judges merely changed their assignment. While we did not win the war, we won some battles. After the SCOTUS decision, the Army and Coast Guard got on board with terms of office. In the last few years, Congress has directed terms of office. So we did "win," it just took many years to see the positive result.

In United States v. Lattin, the issue was suppress of evidence obtained through a digital search of the clients cellphone. Both the Air Force Court of Criminal Appeals (AFCCA) and the Court of Appeals for the Armed Forces (CAAF) decided that the search was legal and denied relief. We petitioned the U.S. Supreme Court. SCOTUS denied the petition, but that will not be the last word on how military courts interpret and apply the Fourth Amendment search and seizure clause to military cases involving digital devices and media.

Because SCOTUS denied the petition that is not a ruling on the merits of the claims we made about the illegality of the search. To us that means trial military defense counsel should continue to raise the issue, as should military appellate defense counsel. SCOTUS has a history of denying writs until they have had so many they decide to take the case. See, e.g. Weiss. Until and if SCOTUS decides the issues it is not frivolous to raise it. Our petition brief is here.

As lead or co-counsel for the National Institute of Military Justice (NIMJ)[z]

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• NIMJ has filed an amicus brief in United States v. Gilment.
• NIMJ amicus in Larrabee v. Braithwaite, before the Circuit Court of Appeals for the District of Columbia, May 2021.
• NIMJ Amicus in United States v. King (C.A.A.F. 2000). The oral argument is available in video on C-Span at this link (Director Philip D. Cave, argued for NIMJ).
• NIMJ Amicus in United States v. Sayler (C.A.A.F. 2013) 13-0186MC
• NIMJ Amicus in United States v. Lee (C.A.A.F. 2000) 99-0002AF
• NIMJ Amicus in United States v. Dowty (C.A.A.F. 2003) 03-1052NA
• NIMJ Amicus in United States v. Behenna (C.A.A.F. 2010) 12-0030AR
• NIMJ Amicus in Support of Certiorari in Stevenson v. United States (Supreme Court 2000) 00-919
• NIMJ Amicus in Support of Certiorari in New v. United States (Supreme Court 2006) 06-691
• NIMJ Amicus in Support of Certiorari in Loving v. United States Dep't of Defense & Dep't of the Army (Supreme Court 2009) 08-1476
• NIMJ Amicus in Support of Certiorari in Gray v. United States (Supreme Court 200000-607)
• NIMJ Amicus in Support of Petition of Certiorari in Akbar v. United States (Supreme Court 2016) NIMJ Amicus in Support of Certiorari
• NIMJ Amicus in Loving v. United States (CAAF 2008) 06-8006AR
• NIMJ Amicus in In Re Loving (CAAF 2003)
• NIMJ Amicus in Holmes v. United States (ACCA 2010) 2010-0918
• NIMJ Amicus in Bergdahl v. Burke (CAAF 2015) 16-0059AR
• NIMJ Amicus and Other Case Documents in In Re Diaz (CAAF 2003) 03-8014NA

[z] Writing an amicus brief has little difference to a regular brief in terms on evaluation, research, legal analysis, and argument on a legal issue.

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Writ of Coram Nobis

In Bergdahl, 

In Loving,

In Rorie,

Some other successes to give you an idea of work done

Medical providers and patient care

In a medical provider case,[1] we represented the client at a first trial, on appeal, and at the retrial. Four patients accused the client of molesting them during their medical appointments. The Members (jury) convicted him of just one of the charges after a hotly contested trial. We found out later that during the jury deliberations, the two senior members had used their rank and influence to get a guilty verdict because they wanted to protect the Army's reputation. The trial happened at the height of the Congressional and media attention to the issue of sexual assaults in the military. We appealed and won a new trial. We gained an acuittal at the retrial; this time, the Members (jury) found him not guilty. Result: No conviction, No sex offender registration, No other retrial, no prosecution appeal; and some backpay.

[1] We have established expertise representing medical providers accused of sex offenses against patients, both at trial and on appeal. They require a detailed understanding of medical procedures, testing, and treatment. In these cases the prosecution has to prove that whatever was done was because the provider made a fraudulent representation that the toucing was medically necessary.

In the case of an Air Force E-3, another medical provider, we convinced the Air Force Court of Criminal Appeals to set aside his conviction because of the military judge's evidentiary error. When the case was sent back for retrial, we were able to convince the convening authority that the case was a loser at trial. The charges were dropped and the client was administratively separated.

Result: No conviction, No sex offender registration, No other retrial, no prosecution appeal; and some backpay.[2]

[2] Pay awaiting retrial is important to understand. This link to "Pay and Rank" will take you to a page explaining your pay and rank situation while pending retrial.

In the case of an Army E-6, we had another sexual assault case on appeal where the prosecutor had gone overboard in making various improper arguments to the Members on why they should convict the client. 

• The prosecutor made to improper arguments about the client exercising his rights.
• Improperly invoked (UCI) issues: Army policy about sexual assaults.

We won him a new trial after the Army Court of Criminal Appeals decided in our favor, represented him at the retrial, and we won a finding of not guilty from the judge.

Result: No conviction, No sex offender registration, No other retrial, no prosecution appeal; and some backpay.

In the case of an Army E-5, we first convinced the Army Court of Criminal Appeals that they should order an evidentiary hearing in accordance with United States v. Dubay [z], because there were many facts missing that needed to be developed for the appeal.

[z] A Dubay hearing is an authorized way a court of criminal appeals can have an evidentiary hearing presided over by a military judge to develop all of the facts necessary for an appeal. You can find more at the "Dubay hearings" page. 

In Plant

In the case of a Navy E-5, we represented him at trial. We wanted to introduce evidence of the alleged sexual assault victim's prior complaint in another situation, which we considered false. The military judge wouldn't let us bring that up, even though we tried several times during the trial. On appeal, we took on the military judge's ruling. The Navy-Marine Corps Court of Criminal Appeals set aside a finding of attempted larceny for a lack of factual sufficiency but affirmed the convictions for sexual assault. We then appealed to the Court of Appeals for the Armed Forces, where a 3-2 split court voted in our favor. The case was remanded for a new trial. However, once again, we were able to convince the Government not to retry the client and they administratively separated him instead.

Result: No conviction, no sex offender registration.

In the case of an Army O-4 we were defending at trial, the Government appealed several favorable rulings from the military judge. The Army Court of Criminal Appeals spent only a few words to summarily find that the appeal had no merit. We went back to trial and the client was acquitted of almost all the charges and received a very light sentence.

In the case if an Air Force E-5, the military judge made a serious error in giving instructions to the Members (jury) on how they could consider other acts as a propensity to commit sexual assault.

Result: New trial. The Government did not appeal because the error was so obvious and prejudicial.

In a Marine Corps case of an E-5, accused of domestic abuse we established that inflammatory testimony, the Government's use of unnecessary and prejudicial details, and the military judge's errors were so prejudicial that a new trial granted.

Result: No new trial, no conviction.

A last comment about why appeals take so long