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Overturned Convictions Part 2

ACCA agreed with Josh’s brief that two of the specifications his client pleaded guilty to were multiplicious, and two other specifications were an unreasonable multiple of charges. So ACCA dismissed two of those four specifications—solicitation to wrongfully distribute oxycodone, and possession of morphine. Read the ACCA’s official opinion here. Read More

Overturned Convictions

ACCA agreed with Josh’s brief that found one of the conspiracies his client was convicted of should be vacated. ACCA also agreed to dismiss one specification for dereliction of duty, conduct unbecoming an officer, and obtaining medical services under false pretenses—because these were alternative theories of culpability for the same course of conduct. The Court also dismissed the remaining specifications of conduct unbecoming an officer after finding they were an unreasonable multiplication of charges with six specifications of false official statements. Read the ACCA’s official opinion here. Read More

New Action and Second Chance at Clemency

ACCA agreed, in part, with Josh’s supplemental brief and oral argument that the Staff Judge Advocate provided the wrong legal advice, and the client was entitled to a new action, and renewed chance at clemency. The opinion is more interesting for the sections of the opinion that ACCA rejected, however. There is a long discussion on Elonis’ reach to Article 120, which was finally resolved by CAAF in McDonald, where CAAF ruled the mens rea for sexual assault by bodily harm is “general intent.” As Josh discussed in a blog post at Global Military Justice Reform, there are potential issues with CAAF’s analysis of certain military crimes as being “general intent” crimes, in the Supreme Court’s Elonis framework. But SCOTUS has not taken up any of these petitions when Appellants have challenged CAAF’s framework. Read the ACCA’s official opinion here. Read More

Sentence to Confinement Vacated

Josh’s client was HIV positive and did not disclose this to his partner, a fellow Soldier. He was convicted, in part, of aggravated assault and sentenced to a bad-conduct discharge, confinement for 12 months, forfeiture of all pay and allowances, and reduction to the grade of E-1. ACCA agreed with Josh’s reply brief and oral argument that the military judge committed instructional error, and the conviction for aggravated assault should be modified to the lesser charge of assault consummated by battery. ACCA also modified the sentence, upholding only the bad-conduct discharge. Read the ACCA’s official opinion here. Read More

Factual Insufficiency: Court-Martial Conviction Vacated — Client Gets Honorable Discharge with Full VA Benefits

The Army Court of Criminal Appeals (ACCA) vacated Josh’s client’s conviction for adultery as well as his sentence to a bad-conduct discharge. A rehearing was not authorized, as the basis for the decision was factual insufficiency. Under Article 66, ACCA reviews the record of trial anew, taking into account they have not personally observed the witnesses and do not weigh credibility, to determine whether they are convinced beyond a reasonable doubt of the accused’s guilt. In Josh’s brief and reply brief, he highlighted that the government failed to prove his client was married at the time of his accused misconduct. ACCA agreed. So they, essentially, entered a finding of not guilty. At court-martial, he had already been acquitted of the other charges. After the trial, he was able to leave the Army with an honorable discharge and his full VA benefits. Read the ACCA’s official opinion here. Read More

Implied Bias at CAAF: Court-Martial Convictions Reversed

An officer panel convicted Josh’s client of various sexual offenses, of making a false official statement, and of obstruction of justice. CAAF vacated his convictions and his sentence. Josh wrote the principal brief at CAAF, and also argued the case. The issue on appeal was the implied bias of the panel. Implied bias is a unique concept for military justice, where the Court is looking to protect the integrity of the system and how fair it appears, without determining any actual bias or prejudice against the accused. Here, three of the panel members served on the Sexual Assault Review Board (SARB) where the client’s case was briefed before his trial. Even though the three members said they had no recollection of his case from that time, CAAF found that actual memory of the case or actual bias towards him was irrelevant. Rather, because CAAF found that the three members gave inaccurate answers about their service on the SARB, they prevented a full and knowing voir dire. Therefore, the convictions could not stand because a member of the public, in these circumstances, would harbor substantial doubt about the fairness of the court-martial process. Read the CAAF’s official opinion here. Read More

4th Amendment Case at CAAF: Soldier Gets a New Hearing Because the Army Unlawfully Seized His Laptop Computer

While deployed to Afghanistan, Josh’s client secretly recorded videos of members of his unit using the latrine. After other Soldiers in the unit apprehended him, the Army Criminal Investigation Division (CID), seized his cell phone. CID also seized his laptop computer to search for evidence of his alleged crimes. The issue on appeal was whether the laptop seizure, and subsequent search of the laptop’s contents, was lawful. In a 4-1 opinion, the Court of Appeals for the Armed Forces (CAAF) reversed the trial court and Army Court of Criminal Appeals. CAAF found CID lacked probable cause to seize the Soldier’s laptop computer, and suppressed the contents of the laptop. CAAF vacated his guilty plea and convictions, and authorized a rehearing. Josh handled this case while serving on active duty in the United States Army at the Defense Appellate Division. He wrote the principal brief at CAAF, and also argued the case. This was a huge victory for his client, as CID found evidence on his laptop that led to additional criminal charges unrelated to the secret recording of videos in the latrine in Afghanistan; because they violated his rights by taking the computer in the first place, the Army could no longer use the laptop in a prosecution of him. Read the CAAF’s official opinion here. Read More