Under Article 41(b)(1), UCMJ each side is afforded one peremptory challenge unless new members are detailed. United States v. Arriaga, ACM 37439, 2010 WL 2265581 (A.F. Ct. Crim. App. May 7, 2010) (unpublished) deals with a contested trial where the accused was found guilty of housebreaking and indecent assault. Shortly before the trial, the 20th Fighter Wing […]
Panel Selection and Article 25, UCMJ Historical case discussion: This article examines the selection process in the 2009 Gooch appeal. The statutory qualifications remain relevant, but current Article 25 also requires randomized selection of qualified personnel to the maximum extent practicable under presidential regulations. That requirement applies to courts-martial convened on or after 23 December […]
Jumping From a Military Vessel Into the Water: Article 87(b) A deliberate jump from a vessel in use by the armed forces into the water can lead to a charge under Article 87(b) when it is wrongful and intentional. The prosecution must prove the vessel was in use by the armed forces, the jump, and […]
United States v. Story, No. 20061014 (A. Ct. Crim. App. Dec. 2, 2009) (unpublished) deals with the panel members’ right to call witness. During the accused’s trial, the members were on a two-hour break after both sides had rested but before closing arguments and instructions. When the panel returned, a member asked to call an […]
Jul 23, 2011 In United States v. Kirk, No. Misc. 20100443 (A. Ct. Crim. App. July 28, 2010) (unpublished) the Government initially filed an Article 62 appeal, challenging the military judge’s decision to suppress the accused’s statements based on a violation of Article 31(b), UCMJ. The ACCA reversed the military judge’s ruling on the suppression […]
United States v. Martinez, 69 M.J. ____ (A. Ct. Crim. App. Oct. 7, 2010) deals with improper conduct of the judge with other judge. The accused in this case was initially arraigned by a military judge referred to as “supervisory judge” the opinion. Following arraignment, the accused agreed to plead guilty pursuant to an approved […]
Jul 21, 2011 R.C.M. 902(a) provides “a military judge shall disqualify himself or herself in a proceeding in which that military judge’s impartiality might reasonably be questioned.” R.C.M. 902(e) allows parties to waive any ground for challenge predicated on this subsection. By contrast, R.C.M. 902(b) provides five non-waivable (and rare) grounds for challenge. The Discussion to R.C.M. […]
In United States v. Smith, 69 M.J. ____ (A. Ct. Crim. App. Aug. 10, 2010) the Acting Commander, Fort Lewis, referred charges against the accused to court-martial. On M-15 appeal, the defense argued the commander was not designated as a court-martial convening authority by the Secretary of the Army (SECARMY) and did not have jurisdiction […]
Jul 19, 2011 In United States v. Kuhn, ACM 37357 (A.F. Ct. Crim. App. Mar. 8, 2010), review denied, 69 M.J. 170 (C.A.A.F. 2010) the accused pled guilty to five specifications of wrongful use of cocaine. Per his pretrial agreement, accused agreed to waive all waivable motions. On appeal, accused asserted ineffective assistance of counsel, […]