Opinion Analysis: CAAF excuses the failure to challenge the Army CCA’s improper reassessment, and then rewrites history, in United States v. Gonzalez
CAAFlog
by Zachary D Spilman
4y ago
CAAF decided the the Army case of United States v. Gonzalez, __ M.J. __, No. 19-0297/AR (CAAFlog case page) (link to slip op.), on April 24, 2020. In this companion case to United States v. Wall, __ M.J. __ (C.A.A.F. Apr. 24, 2020) (CAAFlog case page), CAAF holds that the appellant neither waived nor forfeited his objection to the Army CCA’s improper reassessment of the sentence by failing to challenge that reassessment either on remand to the convening authority or at the CCA after remand. Then, applying the holding of Wall (that the reassessment was improper), a majority of the court finds p ..read more
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Opinion Analysis: CAAF finds the issue ripe and the Army CCA wrong (but gives the CCA a second chance), in United States v. Wall
CAAFlog
by Zachary D Spilman
4y ago
CAAF decided the Army case of United States v. Wall, __ M.J. __, No. 19-0143/AR (CAAFlog case page) (link to slip op.), on April 24, 2020. Reviewing the Army CCA’s decision to both remand the case to the convening authority and also to reassess the sentence (with the suggestion that the convening authority could simply approve the sentence as reassessed by the CCA), a majority of CAAF finds the issue ripe and no authority for such reassessment. Two judges dissent from the finding of ripeness, however, and would not decide (in this case) whether the Army court was wrong to simultaneously remand ..read more
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This Week in Military Justice – April 26, 2020
CAAFlog
by Zachary D Spilman
4y ago
This week at SCOTUS: The petitioner in Richards filed this reply to the Solicitor General’s opposition to the cert. petition, and the case is scheduled for conference on May 15. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking two cases: United States v. Briggs, No. 19-108 (consolidated) (cert. granted Nov. 15; pend. oral arg. next term) Richards v. Donovan, et al., No. 19-55 (pend. conf. on May 15) This week at CAAF: CAAF postponed the April oral arguments and cancelled the May oral argument dates. The next scheduled oral argument at CAAF is ..read more
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CAAF grants review of a challenge to a Staff Judge Advocate
CAAFlog
by Zachary D Spilman
4y ago
On Tuesday, CAAF granted review in this Air Force case: No. 20-0168/AF. U.S. v. Kevin S. Chandler. CCA S32534. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issue: THE STAFF JUDGE ADVOCATE NEGOTIATED THE INCLUSION OF AGGRAVATING EVIDENCE IN A STIPULATION OF FACT. OVER DEFENSE OBJECTION, AND AFTER DISPUTING THE DEFENSE’S VERSION OF EVENTS, THE STAFF JUDGE ADVOCATE PROVIDED POST-TRIAL ADVICE TO THE CONVENING AUTHORITY. DID THE STAFF JUDGE ADVOCATE’S PRETR ..read more
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Opinion Analysis: A de novo review of a preserved error without assigning the burden of persuasion, in United States v. Clark
CAAFlog
by Zachary D Spilman
4y ago
CAAF decided the Army case of United States v. Clark, __ M.J. __, No. 19-0411/AR (CAAFlog case page) (link to slip op.) on April 22, 2020. Finding that the military judge misapplied R.C.M. 914 (the military version of the Jencks Act, 18 U.S.C. § 3500), CAAF nevertheless affirms the findings and sentence because it concludes that the error did not have a substantial influence on the findings. That conclusion, however, turns on a de novo review of the impact of the error without any assignment of the burden to show prejudice or harmlessness. In so doing, CAAF either overlooks or disregards its o ..read more
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DC Circuit doesn’t vacate all orders issued by military commissions judge Colonel Parrella
CAAFlog
by Zachary D Spilman
4y ago
Last year, the U.S. Court of Appeals for the District of Columbia Circuit granted a writ of mandamus in the long-running military commission of al Nashiri (who is accused of orchestrating the 2000 bombing of USS Cole) and vacated orders issued by former military commissions judge Air Force Colonel Vance Spath (since retired) on the basis that Spath’s application to become (and eventual employment as) a federal immigration judge created “an intolerable cloud of partiality over [Spath’s] subsequent judicial conduct.” I discussed the decision in this post. Now, however, in an opinion available he ..read more
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SCOTUS invalidates non-unanimous jury verdicts in criminal cases; doesn’t mention courts-martial with members
CAAFlog
by Zachary D Spilman
4y ago
The Supreme Court just issued an opinion (available here) in Ramos v. Louisiana, No. 18-5924, holding that the rules in Louisiana and Oregon that permit non-unanimous jury verdicts in criminal cases violate the Sixth Amendment. Isaac predicted the result in this post. He also predicted that the Court’s decision would not reach court-martial prosecutions (which today require only a three-fourths majority for a conviction, up from two-thirds prior to 2019), and indeed it does not. I don’t see a single mention of the military rule in the five separate authored opinions (Justice Gorsuch writing fo ..read more
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This Week in Military Justice – April 19, 2020
CAAFlog
by Zachary D Spilman
4y ago
This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court, where I’m tracking two cases: United States v. Briggs, No. 19-108 (consolidated) (cert. granted Nov. 15; pend. oral arg.) Richards v. Donovan, et al., No. 19-55 (pet. filed Jun. 8; resp. req. Aug. 14, filed Mar. 23) This week at CAAF: CAAF postponed the April oral arguments and cancelled the May oral argument dates. The next scheduled date for oral arguments at CAAF is June 2, 2020. This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments. This week at the AFCCA: The Air Force ..read more
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The Army CCA affirms a conviction of drug distribution even though it is “not convinced that Article 112a, UCMJ, was intended to label drug users such as appellant as drug distributors.”
CAAFlog
by Zachary D Spilman
4y ago
In United States v. Myers, No. 20180309 (A. Ct. Crim. App. Mar. 6, 2020) (link to slip op.), a three-judge panel of the Army CCA approves a conviction of wrongful distribution of cocaine in violation of Article 112a that is based on the appellant “engag[ing] in the simultaneous purchase and ingestion of cocaine on approximately ten to fifteen occasions” with a fellow soldier. Slip op. at 2. Writing for the panel, Judge Walker observes that Article 112a embodies a “Congressional . . . preference to align military law with civilian practice in prosecuting drug offenses.” Slip op. at 3. That civi ..read more
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If you want ask a court to take over a military defense counsel’s law practice, it has to be a federal court
CAAFlog
by Zachary D Spilman
4y ago
A reader alerted me to an opinion issued last week by the Ninth Circuit in the bizarre case of Stirling v. Minasian, No. 18-55834, 2020 U.S. App. LEXIS 11014 (9th Cir. Apr. 8, 2020) (link to slip op.). Dwight Stirling – a judge advocate in the California Army National Guard – asked the Orange County Superior Court to assume jurisdiction over the law practice of Lieutenant Colonel Minasian – who is also a judge advocate in the California National Guard – on the basis that Minasian is engaged in the unlicensed practice of law in California. The nature of LTC Minasian’s law practice? Official bus ..read more
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