U.S. v. Lofton, 69 M.J. 386

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. when asked, a military judge shall exclude witnesses from the courtroom so that they cannot hear the testimony of other witnesses; the purpose of the sequestration rule is to prevent witnesses from shaping their testimony to match another’s and to discourage fabrication and collusion
2. court-martial spectators should not provide summaries of testimony to sequestered witnesses, and the parties and the military judge should be vigilant in preventing such incidents

Military Justice Personnel: Military Judge: General Powers

1. the military judge may direct a post-trial session at any time before authenticating the record

Military Justice Personnel: Convening Authority: Generally

1. the convening authority may direct a post-trial hearing at any time before taking initial action
2. a convening authority is not compelled to grant a post-trial hearing based merely on unsworn, unsubstantiated assertions

Core Criminal Law Subjects: Crimes: Article 133 - Conduct Unbecoming an Officer and Gentleman Pre-2019 offenses

1. the elements of a violation of Article 133 are that: (1) the accused did or omitted to do certain acts; and (2) under the circumstances, these acts or omissions constituted conduct unbecoming an officer and a gentleman; conduct violative of this article is action or behavior in an official capacity which, in dishonoring or disgracing the person as an officer, seriously compromises the officer’s character as a gentleman, or action or behavior in an unofficial or private capacity which, in dishonoring or disgracing the officer personally, seriously compromises the person’s standing as an officer; an officer’s conduct need not violate other provisions of the UCMJ or even be otherwise criminal to violate Article 133, UCMJ; the gravamen of the offense is that the officer’s conduct disgraces him personally or brings dishonor to the military profession such as to affect his fitness to command the obedience of his subordinates so as to successfully complete the military mission
2. evidence that appellant, a senior officer, made unsolicited comments of a sexual nature to an enlisted woman as a means to further his attempt to establish a personal and unprofessional relationship with her, and that the enlisted woman lost respect for him as a military officer as a result of his comments, was legally sufficient to support his conviction of conduct unbecoming an officer and a gentleman; appellant’s actions disgraced him personally and as an officer such that they compromised his fitness to command and to successfully complete the military mission; taking the evidence in the light most favorable to the government, any rational trier of fact could have found beyond a reasonable doubt each of the elements of the offense

Core Criminal Law Subjects: Witnesses: Sequestration

1. when asked, a military judge shall exclude witnesses from the courtroom so that they cannot hear the testimony of other witnesses; the purpose of the sequestration rule is to prevent witnesses from shaping their testimony to match another’s and to discourage fabrication and collusion
2. court-martial spectators should not provide summaries of testimony to sequestered witnesses, and the parties and the military judge should be vigilant in preventing such incidents
3. prejudice under the sequestration rule of MRE 615 is determined by considering whether the witness’s testimony was affected by the trial proceedings that the witness heard

Trial Stages: Pretrial: Discovery

1. where text messages between family members of victims who were seated inside of the courtroom and victims who were seated outside of the courtroom were not in the custody or control of the government, the trial counsel did not have an obligation to produce them

Trial Stages: Post-Trial Hearings: Authority for

1. post-trial hearings may be convened, for, among other things, the purpose of inquiring into, and, when appropriate, resolving any matter that arises after trial and that substantially affects the legal sufficiency of any findings of guilty or the sentence; the military judge may direct a post-trial session at any time before authenticating the record, and the convening authority may direct a post-trial hearing at any time before taking initial action
2. a convening authority is not compelled to grant a post-trial hearing based merely on unsworn, unsubstantiated assertions
3. where the basis of the defense’s claim for a post-trial session was an unsworn e-mail from a government employee concerning a witness sequestration matter, not from one of the parties or a disgruntled witness, and it was part of an official communication describing the court-martial to other members of the government’s sexual assault prevention and response program, the defense claim was not unsubstantiated, and the convening authority abused his discretion in not ordering a post-trial hearing to determine whether there was reason to inquire into the e-mail’s allegations and their effect, if any, on appellant’s court-martial

Trial Stages: Appeals: Harmless / Prejudicial Error

1. prejudice under the sequestration rule of MRE 615 is determined by considering whether the witness’s testimony was affected by the trial proceedings that the witness heard
2. appellant was not prejudiced by any violation of the sequestration rule caused by text messaging from family members of the victims seated inside of the courtroom to victims seated outside of the courtroom, where the first testifying victim could not have had her testimony shaped by that of the other victims, where appellant was acquitted of all charges involving the third testifying victim, and where the testimony of the second testifying victim related to an incident that was distinct from that involving the first testifying victim, and where her testimony after she was called as a defense witness remained remarkably similar to her testimony given before the third testifying witness and was not very congruent with that of the third testifying witness; there was simply no evidence for concluding that shaping of testimony or collusion occurred

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

1. an appellate court reviews questions of legal sufficiency de novo
2. the test for determining legal sufficiency is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt; this test requires that an appellate court draw every reasonable inference from the evidence of record in favor of the prosecution
3. an appellate court reviews a convening authority’s decision not to grant a post-trial hearing for an abuse of discretion