U.S. v. Easton, 71 M.J. 168

First Principles: Constitutional Matters: Generally

1. Constitutional rights identified by the Supreme Court generally apply to members of the military unless by text or scope they are plainly inapplicable; in general, the Bill of Rights applies to members of the military absent a specific exemption or certain overriding demands of discipline and duty
2. Constitutional rights in the Bill of Rights may apply differently to members of the armed forces than they do to civilians; the burden of showing that military conditions require a different rule than that prevailing in the civilian community is upon the party arguing for a different rule
3. in courts-martial, there is no right to indictment by grand jury
4. judicial deference is at its apogee when the authority of Congress to govern the land and naval forces is challenged; this principle applies even when the constitutional rights of a servicemember are implicated by a statute enacted by Congress

First Principles: Constitutional Matters: Double Jeopardy

1. the protection against double jeopardy under the Fifth Amendment applies in courts-martial
2. in both the military and civilian contexts, once jeopardy has attached, an accused may not be retried for the same offense without consent once jeopardy has terminated
3. once double jeopardy has attached, it precludes retrial under a variety of scenarios including an acquittal, discharge of the jury in the absence of manifest necessity, or dismissal of the charges in the absence of manifest necessity; it does not preclude subsequent proceedings, inter alia, where there is manifest necessity for declaring a mistrial or otherwise discharging the jury
4. a high degree of necessity is required to meet the manifest necessity standard for withdrawing charges after a panel of members is sworn and assembled while permitting retrial without violating the prohibition against double jeopardy
5. a convening authority’s decision to withdraw charges against appellant after the members had been sworn and assembled was not justified by manifest necessity for double jeopardy purposes where a technical failure rendered the deposition video tapes of two essential government witnesses unusable; the trial counsel knew that the video tapes were unusable but still proceeded to trial; and there is no indication in the record that the convening authority withdrew the charges based on manifest necessity; here, the government was responsible for taking and providing the depositions, and it failed to successfully complete this task; failing to provide operable video tapes is not a military exigency; even if military necessity required the taking of depositions in Iraq, it did not compel the transport of the tapes back to the United States in unusable condition
6. in the civilian context, jeopardy attaches when a jury is empaneled and sworn in both federal and state jury trials
7. in the military context under Article 44(c), UCMJ, jeopardy attaches when evidence is introduced; in regards to members trials, Article 44(c), UCMJ, is constitutional on its face and as applied to appellant; while this is different than the Supreme Court’s holding as to when double jeopardy attaches in the civilian world, in the military context, the accused does not have the same protected interest in retaining the panel of his choosing, and therefore jeopardy does not attach in a court-martial until evidence is introduced; the structure and purpose of the UCMJ and the MCM also indicate a different intent on the part of Congress and the President, respectively; Congress appropriately exercised its Article I power, which authorizes it to make rules for the government and regulation of the land and naval forces, when it enacted Article 44(c), UCMJ
8. judicial deference is at its apogee when the authority of Congress to govern the land and naval forces is challenged; this principle applies even when the constitutional rights of a servicemember are implicated by a statute enacted by Congress
9. under RCM 604(b), if the convening authority withdraws charges for an improper reason, they cannot be re-referred for trial; charges withdrawn after the introduction of evidence on the general issue of guilt may be referred to another court-martial only if the withdrawal was necessitated by urgent and unforeseen military necessity

First Principles: Constitutional Matters: Right to a Jury Trial

1. in courts-martial, there is no right to indictment by grand jury; in addition, there is no Sixth Amendment right to trial by jury in courts-martial

Military Justice Personnel: Court Members: Generally

1. excused members of a court-martial need not be replaced unless failing to do so would cause the number of members to fall below quorum

Trial Stages: Merits: Trial Procedures › Withdrawal of charges

1. under RCM 604(b), if the convening authority withdraws charges for an improper reason, they cannot be re-referred for trial; charges withdrawn after the introduction of evidence on the general issue of guilt may be referred to another court-martial only if the withdrawal was necessitated by urgent and unforeseen military necessity

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

1. the constitutionality of a statute is a question of law that an appellate court reviews de novo
2. an appellate court reviews a military judge’s findings of fact under a clearly erroneous standard

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Generally

1. judicial deference is at its apogee when the authority of Congress to govern the land and naval forces is challenged; this principle applies even when the constitutional rights of a servicemember are implicated by a statute enacted by Congress

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: United States Code

1. judicial deference is at its apogee when the authority of Congress to govern the land and naval forces is challenged; this principle applies even when the constitutional rights of a servicemember are implicated by a statute enacted by Congress

Miscellaneous Matters: Judicial Review: Generally

1. judicial deference is at its apogee when the authority of Congress to govern the land and naval forces is challenged; this principle applies even when the constitutional rights of a servicemember are implicated by a statute enacted by Congress