U.S. v. Stirewalt, 60 M.J. 297

First Principles: Constitutional Matters: Due Process

1. constitutional challenges to Article 125, UCMJ, based on the Supreme Court’s decision in Lawrence v. Texas must be addressed on an as applied, case-by-case basis; there is a tripartite framework for addressing Lawrence challenges within the military context: First, was the conduct that the accused was found guilty of committing of a nature to bring it within the liberty interest identified by the Supreme Court? Second, did the conduct encompass any behavior or factors identified by the Supreme Court as outside the analysis in Lawrence? and, Third, are there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest?

Military Justice Personnel: Staff Judge Advocate: Qualifications / Disqualifications

1. Article 6(c), UCMJ, states that no person who acts as an investigating officer may later act as a staff judge advocate or legal officer to any reviewing authority upon the same case; the plain language of the Article 6(c) states that it applies to a staff judge advocate acting for a reviewing authority; all of the instances where CAAF has found violations of Article 6(c) involve subsequent actions for a reviewing authority; on its face, Article 6(c) applies to a staff judge advocate acting for a reviewing authority, and its application does not extend to a staff judge advocate preparing a pretrial advice for a referring authority; where an investigating officer’s subsequent participation in a case does not involve a reviewing authority, Article 6(c) is not applicable

Core Criminal Law Subjects: Crimes: Article 125 - Sodomy Pre-2019 offenses

1. constitutional challenges to Article 125, UCMJ, based on the Supreme Court’s decision in Lawrence v. Texas must be addressed on an as applied, case-by-case basis; there is a tripartite framework for addressing Lawrence challenges within the military context: First, was the conduct that the accused was found guilty of committing of a nature to bring it within the liberty interest identified by the Supreme Court? Second, did the conduct encompass any behavior or factors identified by the Supreme Court as outside the analysis in Lawrence? and, Third, are there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest?
2. where consensual sodomy occurred between a commissioned officer department head and a subordinate enlisted crew member, and where this conduct was prohibited by Coast Guard regulations and policy, the conduct fell outside any protected liberty interest recognized in Lawrence and was appropriately regulated as a matter of military discipline under Article 125; thus, Article 125 was constitutional as applied
3. by its terms, Article 125 prohibits every kind of unnatural carnal intercourse, whether accomplished by force or fraud, or with consent; similarly, the article does not distinguish between an act committed in the privacy of one’s home, with no person present other than the sexual partner, and the same act committed in a public place in front of a group of strangers, who fully apprehend in the nature of the act; thus, Article 125 forbids sodomy whether it is consensual or forcible, heterosexual or homosexual, public or private

Trial Stages: Pretrial: Investigations (Article 32)

1. RCM 405(d)(1) unambiguously states that an investigating officer is disqualified to act later in the same case in any other capacity; a violation of RCM 405(d)(1), however, must be measured for prejudice

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. where the issue of unlawful command influence has been litigated on the record, CAAF reviews the military judge's findings of fact under a clearly erroneous standard; the question of command influence flowing from those facts, however, is a question of law that CAAF reviews de novo
2. a violation of RCM 405(d)(1) must be measured for prejudice