2012 (September Term)
United States v. Clifton, 71 M.J. 489 (an appellate court reviews a military judge’s denial of a panel member’s request to recall a witness for abuse of discretion).
2011 (September Term)
United States v. Nash, 71 M.J. 83 (the military judge abused his discretion when he did not excuse a member for actual bias after that member asked the accused’s wife, who was testifying on the merits in a court-martial involving the accused’s alleged sexual misconduct with children, if she thought a pedophile could be rehabilitated; the member’s question suggested before the close of the evidence that the member believed the accused was a pedophile who committed the crimes he was charged with and that the member might believe that pedophiles cannot be rehabilitated; and after further voir dire of this member, because the member did not state a clear rationale for asking the question, his rationale was inadequate to resolve the question of bias and did not relieve the concern that the member had made up his mind; in addition, the member’s question demonstrated that he had not kept an open mind until the close of evidence as required by the military judge’s preliminary instructions and that he could not yield to later instructions to keep an open mind).
United States v. Weeks, 71 M.J. 44 (it is an abuse of discretion for a military judge to accept a guilty plea without an adequate factual basis to support it; it is also an abuse of discretion if the ruling is based on an erroneous view of the law).
United States v. Campbell, 71 M.J. 19 (a military judge’s decision to deny relief for unreasonable multiplication of charges is reviewed for an abuse of discretion).
2010 (September Term)
United States v. Beaty, 70 M.J. 39 (while an appellate court reviews a military judge’s sentencing determination under an abuse of discretion standard, where a military judge’s decision was influenced by an erroneous view of the law, that decision constitutes an abuse of discretion).
United States v. Pope, 69 M.J. 328
(the military judge abused his discretion by admitting a green
detoxification
drink bottle as demonstrative evidence where (1) there was no evidence
that
appellant consumed detoxification drinks before learning she had tested
positive for cocaine on the urinalysis test underlying the charged
offense,
resulting in the drinks having minimal to no probative value with
respect to whether
appellant’s drug usage was knowing and therefore wrongful, (2) the
demonstrative evidence was not helpful because the members could have
easily
comprehended the testimony about green detoxification drinks without
the aid of
a physical example purchased by the government, (3) the bottle
purchased by the
government was not an accurate representation of the bottles described
by the
witness, where the bottle purchased by the government had a label
identifying
the drink as a detoxification drink and the bottles seen by the witness
in
appellant’s possession had no labels at all, and (4) the demonstrative
evidence
failed the MRE 403 balancing test).
United
States v. Jones, 69 M.J. 294 (in accordance
with RCM 701(g)(1), the
military judge may specify the time, place, and manner of making
discovery and
may prescribe such terms and conditions as are just; thus, it could be
within
the military judge’s discretion to deny a mid-providence request to
stop the
trial for an accused to review evidence).
(a military judge abused his
discretion when
he prohibited a pretrial review of evidence of receipt of child
pornography on
the scant rationale that “it is what it is,” where both the government
and
defense had agreed to such a review, and there was no argument that the
scheduled pretrial review would have interfered in the trial
proceedings).
United
States v. Staton, 69 M.J. 228 (in this case,
the military judge did not
abuse his discretion in admitting evidence of prosecutor intimidation
as
evidence of consciousness of guilt, where the military judge addressed
the
general risk that the members would treat this evidence of uncharged
acts as
character evidence and use it to infer that the accused had acted in
character,
and thus convict, with a detailed and tailored instruction regarding
appropriate use of this information).
United
States v. White, 69 M.J. 236 (in a
prosecution for signing a false official
document relating to the accused’s response about her criminal history
on an AF
Form 1540, Application for Clinical Privileges/Medical Staff
Appointment, the military
judge did not abuse his discretion in excluding Army credentialing
forms
previously completed by the accused as irrelevant; the excluded forms
were
different in format and content from the AF Form 1540, they did not
contain any
questions concerning an applicant’s criminal history, were completed by
the accused
four to ten years prior to her completing the AF Form 1540, and
contained no
information that would make the existence of the accused’s intent to
deceive
more or less probable).
United
States v. Diaz, 69 M.J. 127 (military judges
are afforded broad discretion
in deciding whether or not to accept a guilty plea; when an accused
enters a
guilty plea, the military judge is required to make such inquiry of the
accused
as shall satisfy the military judge that there is a factual basis for
the
plea).
(the military judge did not
abuse his
discretion in rejecting appellant’s proffered guilty plea to conduct
unbecoming
an officer under Article 133, UCMJ, for releasing classified documents,
where
appellant attempted to substitute for the words “classified documents”
the
phrase “government information not for release;” although an accused is
free to
proffer an alternative plea, he is not entitled to alter the gravamen
of the
charge and design his own offense; appellant’s proffered plea was
qualitatively
distinct from the charged offense and changed the nature of the conduct
that
the government charged as unbecoming).
(evidence of appellant’s
ethical duties as a
judge advocate and attorney was relevant in a prosecution for conduct
unbecoming an officer to show that he had an honorable motive when he
released
classified documents about detainees at the Guantanamo naval base; a
determination as to whether conduct charged under Article 133, UCMJ, is
unbecoming of an officer and gentleman includes taking all the
circumstances
into consideration; such circumstances incorporate the concept of
honor; appellant’s
view of what those circumstances entailed, and what was “honorable,”
was
therefore relevant to his charge of conduct unbecoming an officer for
releasing
classified documents; in short, evidence of an honorable motive may
inform a
factfinder’s judgment as to whether conduct is unbecoming an officer;
this is
possible even where the conduct itself amounts to a delict; this might
be the
case, for example, where an accused drives under the influence of
alcohol in
order to rush a gravely injured person to an emergency room;
accordingly, in
this case, the military judge abused his discretion when he prohibited
appellant from presenting motive evidence on the Article 133, UCMJ,
charge,
without first evaluating appellant’s specific proffers for factual and
legal
relevance under MRE 401, MRE 402, and MRE 403 in the context of the
Article
133, UCMJ, charge).
United
States v. Graner, 69 M.J. 104 (a military
judge abuses his discretion when
his findings of fact are clearly erroneous, the military judge’s
decision is
influenced by an erroneous view of the law, or the military judge’s
decision on
the issue at hand is outside the range of choices reasonably arising
from the
applicable facts and the law).
(a military judge did not
abuse his discretion
in determining that the defense did not present an adequate theory of
relevance
to justify the compelled production of a DoD report regarding the
duties owed
to detainees during an interrogation; appellant, who was charged with
the
maltreatment of Iraqi detainees at an American-operated detainee
facility in
Iraq, presented no evidence that his state of mind at the facility was
in any
way affected by this DoD report that he had never seen; in addition,
appellant’s affirmative duty to protect the detainees under his charge
from
abuse was not affected by any views on the international legal status
of Iraqi
detainees set out in the report; and finally, appellant failed to
present any
facts which, if true, would constitute unlawful command influence).
(a military judge did not
abuse his discretion
in declining to order the production of various documents that
appellant
maintained on appeal that he requested; RCM 703(f)(3) requires that any
request
for the production of evidence shall list each piece of evidence and a
description of each item sufficient to show its relevance and
necessity, a
statement where it can be obtained, and, if known, the name, address,
and telephone
number of the custodian of the evidence; the defense failed to meet
this burden
with respect any of these documents with the exception of a DoD report).
(a military judge did not
abuse his discretion
in excluding the testimony of and an email from a mid-level military
intelligence officer who would have testified about when military
intelligence
officers generally became more forceful in their treatment of detainees
and who
had written an email in which he stated that he favored the more
forceful
treatment of detainees during interrogation; although the defense
indicated
that this evidence would help establish the defense theory that
appellant’s
superiors authorized the rough treatment of detainees, the evidence was
not
relevant where there was no evidence that appellant, or anyone giving
orders to
appellant, had any contact with the officer or knew about the email,
and where
appellant was still able to present direct evidence that he and his
coconspirators believed that they were supposed to soften up the
detainees;
given the total lack of evidence connecting the officer’s opinions with
appellant’s conduct, neither the expected testimony nor the email had a
tendency to show that any fact of consequence to the court-martial was
more or
less probable).
(a military judge has broad
discretion as the
gatekeeper to determine whether the party offering expert testimony has
established an adequate foundation with respect to reliability and
relevance).
(in a prosecution of an
accused charged with
the maltreatment of detainees at an Iraqi detention facility, a
military judge
did not abuse his discretion when he limited the testimony of a
use-of-force
expert to the point that detainees stacked in a naked human pyramid
would not
have suffered from positional asphyxia, a dangerous medical condition
where a
person has trouble breathing as a result of pressure on the diaphragm,
because
of the manner in which they were stacked; the military judge properly
determined that this expert had an insufficient basis to conclude that
the
naked human pyramid and the tether around the neck of one detainee were
reasonable uses of force).
United
States v. Lloyd, 69 M.J. 95 (appellant, who
was charged with assault with a
dangerous weapon in connection with his involvement in a bar fight in
which
three victims were stabbed, failed to show that the assistance of a
blood
spatter expert was necessary; although the defense argued that a blood
spatter
expert was necessary to explore all possibilities as to how the blood
came to
be on the shirt that appellant was wearing at the time of the
altercation, the
defense’s stated desire to explore all possibilities did not satisfy
the
requisite showing of necessity; in addition, although the defense
argued that
it needed to understand and potentially present expert testimony on the
manner
in which blood spatters from a wound and that expert assistance on the
physics
of bloodstain patterns would allow it to either rule out or present a
theory
about the presence of the alleged victim’s blood on appellant’s
clothing, the
defense did not specify what theory it sought to present; absent a more
precise
explanation of the theory it hoped to pursue through the assistance of
a blood
spatter expert, the military judge did not abuse her discretion when
she denied
the defense motion for the assistance of a blood spatter expert).
(a military judge does not
abuse her discretion
by failing to adopt a theory that was not presented in a motion at the
trial
level but is later presented on appeal; this is consistent with the
general
rule that a legal theory not presented at trial may not be raised for
the first
time on appeal absent exigent circumstances).
United States v. Yammine, 69 M.J. 70 (where the
military judge’s
view of the law with respect to a qualifying offense under MRE 414 was
erroneous, he abused his discretion by admitting evidence of a list of
computer
filenames suggestive of homosexual acts involving preteen and teenage
boys
found on the hard drive of appellant’s laptop computer as evidence of
another
offense of child molestation).
United
States v. Garner, 69 M.J. 31 (with respect to
his guilty plea to attempting
to violate 18 USC § 2422(b) by using the Internet to knowingly
persuade,
entice, and induce a minor to engage in sexual intercourse and oral
sodomy in
violation of Article 134, UCMJ, appellant admitted that he intended to
persuade, entice, or induce an undercover police officer posing as a
14-year-old girl in an Internet chat room into sexual activity;
appellant
specifically explained that his communications to this “girl” were
designed to
induce her to engage in sexual activity, and he admitted that those
actions
constituted more than mere preparatory steps; he further acknowledged
that in
sending this “girl” a sexually explicit video of himself, he sought to
persuade
or entice her to engage in sexual activity; in light of
appellant’s own admissions during the providence inquiry, the
military judge did not abuse his discretion in accepting the plea; quite
simply, where an accused pleads guilty and during the providence
inquiry admits
that he went beyond mere preparation and points to a particular action
that
satisfies himself on this point, it is neither legally nor logically
well-founded to say that actions that may be ambiguous on this point
fall short
of the line as a matter of law so as to be substantially inconsistent
with the
guilty plea).
United
States v. Roberts, 69 M.J. 23 (in this case, to
the degree the military judge
weighed the credibility of two witnesses (who testified in an MRE 412
evidentiary
hearing about a sexual relationship between the victim and another man)
in
performing his relevancy analysis under MRE 412, he abused his
discretion, and
his findings were clearly erroneous; in addition, given the low
threshold for
relevant evidence, the military judge’s conclusion that the testimony
of those
witnesses was not relevant was also error).
(appellant, who was charged
with rape, was
entitled to cross-examine the victim, his wife, about her relationship
with
another man and about her phone call to that man immediately after the
underlying rape incident, where appellant wanted to establish that the
relationship with the man was a motive for the victim to fabricate the
rape
allegation and the proposed line of questioning did not involve
allegations of
sexual behavior that would implicate the exclusionary rule of MRE 412;
cross-examination of this man may have established a motive for the
victim to
fabricate her allegation of rape, and the military judge erred in
excluding
this cross-examination).
United
States v. Bagstad, 68 M.J. 460 (in this case,
the military judge did not err
or abuse his discretion in denying a challenge for cause against an
officer
member who wrote the fitness report of a subordinate enlisted member
sitting on
the same panel, even though the panel was ultimately composed of three
members,
and the officer and this subordinate enlisted member comprised the
two-thirds
majority sufficient to convict; first, there is no per se rule that a
military
judge must dismiss a member predicated solely on the fact that a senior
member
of the court-martial is involved in writing or endorsing the
effectiveness
reports of junior members; and second, there was no other evidence in
the
record indicating implied bias from the ratings relationship that would
cause
the knowledgeable member of the public to perceive that appellant’s
court-martial panel was not fair and impartial; and in addition, unlike
the
CAAF’s decision in Wiesen, 56 MJ 172 (CAAF 2001), where implied
bias was
implicated when the senior member and his subordinate constituted the
two-thirds majority necessary to convict, in this case, at the time of
appellant’s challenge for cause, only half of the panel was involved in
any
senior-subordinate relationship because appellant had not yet exercised
his
peremptory challenge, and appellant also did not object to the final
composition of the three-member panel on the basis that it violated Wiesen;
as such, the military judge’s denial of the challenge is viewed from
the
perspective of when appellant objected and the military judge
pronounced his
ruling, not with hindsight and knowledge of the final composition of
the
panel).
United
States v. Cowgill, 68 M.J. 388 (an abuse of
discretion occurs if the military
judge’s findings of fact are clearly erroneous or if the decision is
influenced
by an erroneous view of the law).
United
States v. Douglas, 68 M.J. 349 (after finding
that the no-contact orders and
negative behavior of the accused’s military supervisor discouraged
witnesses
from providing character statements for the accused and resulted in
unlawful
command influence, the military judge acted within her discretion in
crafting a
remedy aimed at ameliorating the effects of the supervisor’s actions
rather
than dismissing the charges; the military judge’s remedy was
specifically
tailored to removing the roadblocks to obtaining character statements
and
alleviating the harm in this case and included: (1) providing a
continuance to
enable trial and defense counsel to co-author a memorandum from the
accused’s
commanding officer; (2) making the memorandum available to the defense;
(3) allowing
the defense to decide on the memorandum’s use and to pursue such
witnesses as
it chose; and (4) strongly recommending that (a) the accused be removed
from
his supervisor’s supervision and assigned to another office selected by
the
accused’s commander, (b) the supervisor be issued an order from his
commander
to immediately cease and desist communications regarding the accused
and the
investigations, charges, and court-martial, and (c) the government
immediately
rescind both the cease and desist order and the order prohibiting the
accused
from contacting members of his unit).
United
States v. Ellis, 68 M.J. 341 (a military
judge abuses his discretion when: (1) the
findings of fact upon which he
predicates his ruling are not supported by the evidence of record; (2)
if
incorrect legal principles are used; or (3) if his application of the
correct
legal principles to the facts is clearly unreasonable).
(under the circumstances of
this case, the
military judge did not abuse his discretion by allowing the
government’s expert
to testify in the presentencing hearing as to the accused’s potential
for
rehabilitation, specifically his risk of recidivism).
United
States v. Williams, 68 M.J. 252 (military judge
abused his discretion in
failing to award additional confinement credit under RCM 305(k), where
confinement officials violated an Air Force regulation requiring
medical
authorities to review a detainee’s “suicide watch” status every 24
hours to
determine if continued segregation was appropriate).
(military judge
did not abuse his discretion in awarding one-for-one pretrial
confinement
credit under Article 13, UCMJ, where an alternative basis for
confinement
credit could have been based on RCM 305(k); while RCM 305(k) could have
provided an alternative basis for relief, the factual basis for credit
under
either Article 13, UCMJ, or RCM 305(k) under the facts of this case was
the
same conduct on the part of the confinement officials).
United States v. Nance, 67 M.J. 362
(a military judge’s decision to accept a guilty plea is reviewed for an
abuse
of discretion; a military judge abuses this discretion if he fails to
obtain
from the accused an adequate factual basis to support the plea - an
area in
which an appellate court affords significant deference).
(during the providence
inquiry, the military judge is required to elicit from
the accused factual circumstances that objectively support each element
of the
charged offense to which a plea is entered; determining whether those
factual
circumstances establish conduct that is or is not prejudicial to good
order and
discipline is a legal conclusion that remains within the discretion of
the
military judge in guilty
plea cases).
United
States v. Collier, 67 M.J. 347 (trial judges
retain wide latitude insofar as the
Confrontation Clause is concerned to impose reasonable limits on such
cross-examination based on concerns about, among other things,
harassment,
prejudice, confusion of the issues, the witness’s safety, or
interrogation that
is repetitive or only marginally relevant).
(although a military judge
enjoys wide
discretion in applying MRE 403 balancing, an appellate court gives
military
judges less deference if they fail to articulate their balancing
analysis on
the record).
(the military judge’s
exclusion of evidence
that the main government witness was biased because of her prior
homosexual
romantic relationship between her and appellant, on the ground that
cross-examining the witness about such a relationship would entail
harassment
or undue embarrassment, lacked an articulated or supportable legal
basis and
was thus an abuse of discretion, where the military judge made no
findings
about the likelihood that the witness would suffer from undue
embarrassment or
harassment as a result of cross-examination or the presentation of bias
evidence and where there was no evidence that trial defense counsel
planned to
conduct cross-examination in a threatening or embarrassing manner).
United
States v. Von Bergen, 67 M.J. 290 (the military
judge abused his
discretion in denying appellant an Article 32, UCMJ, investigation on
rehearing, where appellant had waived such an investigation in a
pretrial
agreement when he originally pleaded guilty to possessing but had
pleaded not
guilty at the rehearing, withdrawn from the pretrial agreement, and
requested an
investigation; appellant’s original plea was improvident as a matter of
law,
which had the effect of canceling the pretrial agreement according to
its
terms, and the effect of the rehearing and appellant’s subsequent
withdrawal
from the agreement was to place the parties in their pretrial status
quo ante).
United
States v. Rogers, 67 M.J. 162 (an abuse of
discretion exists if the military
judge found clearly erroneous facts or misapprehended the law).
(an affidavit containing a
witness’s account
of appellant’s alleged cocaine use provided probable cause for a search
authorization permitting the seizure of appellant’s hair for drug
testing,
where the witness stated that she had seen appellant use cocaine in his
home,
the witness was aware of appellant’s prior court-martial charges and
described
a scar on his stomach, which were not matters of general knowledge
within the
squadron, the witness promptly reported the incident to her chain of
command
and her statements remained consistent, and a forensic science
consultant
confirmed that appellant’s hair would reveal cocaine use if he was a
chronic
user; accordingly, despite some other circumstances that undercut a
finding of
probable cause, the military judge did not abuse his discretion in
upholding
the search authorization in this case; a sufficient nexus existed
between the
alleged crime and the seizure of appellant’s hair; as such, sufficient
facts
existed to support a reasonable belief that testing appellant’s body
hair would
yield evidence of his use of cocaine).
United
States v. Conliffe, 67 M.J. 127 (it is an abuse of discretion if a military
judge
fails to obtain from the accused
an adequate factual basis to support the plea; in addition,
it is an
abuse of discretion if a military
judge’s ruling is based on an erroneous view of the law).
(while
an appellate court reviews questions of law de novo, military judges
are
afforded broad discretion in whether or not to accept a plea; this
discretion
is reflected in appellate application of the substantial basis test: does the record as a whole show a substantial
basis in law or fact for questioning the guilty plea).
United
States v. Wuterich, 67 M.J. 32 (the military
judge abused his discretion in
quashing a government’s subpoena for unaired footage of a television
interview
of the accused regarding the alleged offenses on the grounds that the
footage
was cumulative without first conducting an in camera review of the
requested
materials).
United
States v. Martinez, 67 M.J. 59 (in a sentencing
case where appellant pleaded
guilty to a single specification of drug use, statements of senior
member of
court-martial panel during voir dire that a sentence of no punishment
was not
an option and that there would be no room in his Air Force for people
who
abused drugs cast substantial doubt on that member’s fairness or
impartiality,
requiring his removal for cause; when questioned by the military judge,
the
member’s responses were qualified, if not hesitant; although the member
later
disavowed an inelastic attitude toward a punitive discharge, he did not
disavow
an inelastic attitude toward punishment; because his response was
qualified and
inelastic as to the necessity of some punishment, these responses,
combined
with the fact that he was the senior member of the panel, would lead an
objective observer to question whether appellant received a fair
sentencing
hearing; as such, there was a substantial doubt as to the fairness or
impartiality of the member in question, and in light of the cases
dealing with
implied bias and the liberal grant mandate, the military judge abused
his
discretion in not granting the challenge for cause).
United
States v. Czachorowski, 66 M.J. 432
(the military judge abused his discretion when
he admitted into evidence a child victim’s out-of-court statements
under the
residual hearsay exception of MRE 807, where the judge relied on the
trial
counsel’s bare, uncorroborated assertion that the victim was
unavailable to
testify and ignored the government’s burden to prove that reasonable
efforts
could not be made to bring the victim in to testify herself).
United
States v. Elfayoumi, 66 M.J. 354 (in this case,
the military judge
did not abuse his discretion in denying a challenge for cause on the
basis of
implied bias against a member who expressed a view that homosexuality
and
pornography were morally wrong, where the military judge tested for the
member
for personal bias that might manifest itself during the members’
deliberations,
regardless of the military judge’s instructions on the law, where the
military
judge specifically questioned the member on his ability to separate his
personal views from the facts of the case and disaggregated the
question of
homosexuality from the charged criminal conduct, where the military
judge
permitted defense counsel to question the member without restriction,
and where
the member’s answers to defense counsel’s questions about his views on
pornography revealed that he could distinguish between that which he
might find
immoral and that which the law might deem criminal).
United
States v. Webb, 66 M.J. 89 (a military judge
did not abuse her discretion
in ordering a new trial in a drug use case where the government failed
to
disclose impeachment evidence concerning the witness who was assigned
as the
observer of the accused’s provision of a urine sample for drug testing;
evidence that the observer, a link in the chain of custody, had
received
nonjudicial punishment under Article 15 for dishonesty may have raised
serious
questions in the minds of the factfinder concerning the identity of the
urine
tested and whether it was unaltered when it was tested; this point may
have
borne extra weight with the factfinder where the government expressly
prohibited having such persons serve as observers; alone or in
conjunction with
the accused’s denial of use, this evidence may have raised reasonable
doubt in
the factfinders’ minds as to the accused’s guilt; furthermore, the
possession
of this evidence may have altered the accused’s trial strategy -- he
may not
have testified; under all of these circumstances, the military judge
cannot be
faulted for concluding that it was probable that had the prosecution
provided
the nonjudicial punishment to the defense, it would have produced a
substantially more favorable result for the accused -- in other words,
it
undermined confidence in the outcome of the trial; accordingly, in this
case,
the government’s failure to disclose exculpatory evidence affecting a
witness’s
credibility that the accused specifically asked the government to
disclose was
not harmless beyond a reasonable doubt).
United
States v. Ortiz, 66 M.J. 334 (a military
judge abuses her discretion when she
improperly applies the law).
(in this case, the military
judge abused her
discretion and denied the accused his right to a public trial by
closing the
courtroom to spectators during the testimony of a minor victim, where
the military
judge failed to correctly apply the legal Waller test (Waller
v.
Georgia, 467 US 39 (1984)) necessary to overcome the presumption in
favor
of a public trial and did not even identify the relevant Waller
factors
to consider or articulate the reason for her decision to clear the
courtroom,
let alone make findings).
United
States v. Inabinette, 66 M.J. 320 (a military
judge abuses his
discretion if he accepts a guilty plea without an adequate factual
basis to
support the plea - an area in which an appellate court affords the
judge
significant deference; additionally, any ruling based on an erroneous
view of
the law also constitutes an abuse of discretion).
(in this case, the military
judge
did not abuse his discretion in concluding that appellant’s guilty
pleas
remained provident despite potentially contradictory testimony from a
forensic
psychiatrist who testified for appellant during sentencing that he
suffered
from bipolar disorder with psychotic features, but that there was no
indication
that he did not appreciate the wrongfulness of his actions at the time
of the
offenses, where the judge inquired into appellant’s mental condition
following
the psychiatrist’s testimony and addressed the potential inconsistency
in that
testimony regarding appellant’s mental responsibility at the time of
the
offenses and he did so against a backdrop of consistent RCM 706 boards
that found
the likelihood that appellant was unable to appreciated the nature and
wrongfulness of his behavior as statistically improbable).
United
States v. McIlwain, 66 M.J. 312 (an appellate
court will reverse a military
judge’s decision on the issue of recusal only for an abuse of
discretion).
(a military judge abused her
discretion by
denying a defense motion to recuse herself in a members trial after
declaring
that her participation in companion cases would suggest to an impartial
person
looking in that she could not be impartial in the case and refusing to
sit as
trier of fact).
2007
United States v. Harrow, 65 M.J. 190 (in this case, the
military judge erred when he determined that a failure to remember
facts contained in a prior statement cannot be inconsistent with
in-court testimony that differs from those facts; an inconsistency for
purposes of MRE 613 may be found not only in diametrically opposed
answers, but also in inability to recall, or equivocation; a military
judge has considerable discretion to determine if the trial testimony
is inconsistent with a prior statement; but here the military judge
appears not to have understood that an inability to recall or a
non-responsive answer may present an inconsistency for purposes of MRE
613; consequently, his evidentiary ruling, based on an incorrect
understanding of the law, was an abuse of discretion).
(the military judge did not
abuse his discretion in rejecting a defense attempt, under the guise of
impeachment by inconsistent testimony, to bring in new evidence that
related to a point that the witness had not testified to at trial; the
witness was not asked about this point during his testimony, there was
no inconsistency, and the defense had not established a foundation for
later impeachment).
United States v. Carruthers, 64 M.J. 340 (a military
judge’s discretionary authority to limit cross-examination arises only
after there has been permitted as a matter of right sufficient
cross-examination).
(the military judge did not
abuse his discretion in precluding the defense counsel’s
cross-examination of a co-conspirator regarding his possible sentence
under a plea agreement, where the defense counsel had already engaged
in a lengthy cross-examination regarding the plea agreement which
brought to light the co-conspirator’s possible motive to testify
falsely, and the military judge determined that the probative value of
further inquiry into the co-conspirator’s possible sentence under the
plea agreement was substantially outweighed by the danger of misleading
the members; the military judge did not deny the defense the right to
examine the possibility of bias, but rather simply limited its ability
to inquire about yet another aspect of the plea agreement, when the
agreement’s bearing on bias had already been thoroughly explored).
(once the accused has been
allowed to expose a witness’s motivation in testifying, it is of
peripheral concern to the Sixth Amendment how much opportunity defense
counsel gets to hammer that point home to the members).
(while counsel may request
specific instructions from the military judge, the judge has
substantial discretionary power in deciding on the instructions to
give).
(the military judge did not
abuse his discretion in denying a defense-requested instruction on
government witnesses testifying under a promise of leniency; although
the overall thrust of the requested instruction was correct, the
standard accomplice instruction that the military judge gave
substantially covered the leniency offered the witnesses and addressed
their possible motives to lie as a result of their favorable pretrial
agreements, and the denial of the requested instruction did not deprive
the accused of a defense or seriously impair his ability to present a
defense).
United States v. Lee, 64 M.J. 213 (in this case, the
military judge abused his discretion in refusing a defense request for
expert assistance in a child pornography case where a government
witness offered expert testimony that the images taken from the
accused’s computer were real and not computer-generated based on a
novel digital media analysis; the issue whether the images were real or
virtual was the critical issue, and the defense counsel did not have
the qualifications or expertise to challenge the image analysis
presented by the government’s expert witness; on the facts of this
case, the defense made an adequate showing of necessity where the
requested expert assistance would provide the basis upon which defense
counsel could cross-examine the government expert and possibly
challenge the actual or real nature of the graphic images).
2001