U.S. v. Hennis, 79 M.J. 370

First Principles: Jurisdiction: Generally

1. jurisdiction is the power of a court to decide a case or issue a decree

First Principles: Jurisdiction: In Personam

1. although there was a break in service between appellant’s acquittal of the murder charges in state court and his subsequent reenlistment, appellant was still subject to court-martial jurisdiction for the same murder charges where, consistent with Article 3(a), UCMJ (1982), (1) he was subject to the UCMJ both at the time of the murders and at the time of preferral of charges, (2) the offenses were punishable by confinement for five or more years, and (3) because double jeopardy barred his prosecution in the state using newly available DNA evidence, no other court of the United States could try him where there was no federal statute under Title 18, triable in a US district court, that covered his conduct
2. Article 3(a), UCMJ (1982) is applied at the time court-martial charges are preferred rather than at the time the offenses are committed
3. in Solorio v. US, 483 US 435 (1987), the Supreme Court held that the test for jurisdiction was one of status, namely, whether the accused in the court-martial proceeding was a person who can be regarded as falling within the term land and naval Forces; Solorio applies to both capital and non-capital cases
4. the Army did not lose jurisdiction over appellant, a retired member of the Regular, when it recalled him to active duty from retired status to face a court-martial for the murders of three military dependents where (1) the Army had personal jurisdiction over appellant because of his retired status (Article 2(a)(4), UCMJ), and (2) the Army was also statutorily authorized to and did recall him to active duty under regulations prescribed by the Secretary of Defense; appellant was subject to court-martial jurisdiction under either status and the Army did not lose personal jurisdiction over him by choosing to recall him
5. at the time of appellant’s recall to active duty, under regulations prescribed under 10 USC 688 (2000), the service secretary could assign the recalled member to such duties as the Secretary considered necessary in the interests of national defense; although the term “interests of national defense” was undefined, it includes recalling a retiree to face court-martial charges of killing three military dependents

First Principles: Jurisdiction: Subject Matter

1. in Solorio v. US, 483 US 435 (1987), the Supreme Court held that the test for jurisdiction was one of status, namely, whether the accused in the court-martial proceeding was a person who can be regarded as falling within the term land and naval Forces; Solorio applies to both capital and non-capital cases
2. in this case, appellant’s offenses, the off-base murders of an Air Force officer’s wife and two children, were service-connected where appellant was an Army sergeant at the time and place of the offenses

First Principles: Jurisdiction: Of Trial Court

1. when challenged at trial, the prosecution must prove jurisdiction by a preponderance of evidence

First Principles: Constitutional Matters: Right to Present a Defense

1. the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense

Military Justice Personnel: Court Members: Challenges for Cause

1. the burden of establishing that grounds for a challenge exist is upon the party making the challenge
2. courts generally recognize two forms of bias that subject a juror to a challenge for cause: actual bias and implied bias
3. actual bias is defined as bias in fact; it is the existence of a state of mind that leads to an inference that the person will not act with entire impartiality; actual bias is personal bias which will not yield to the military judge’s instructions and the evidence presented at trial; whether a prospective juror is biased has traditionally been determined through voir dire culminating in a finding by the trial judge concerning the prospective juror’s state of mind; such a finding is based upon determinations of demeanor and credibility that are peculiarly within a trial judge’s province; it is plainly a question of historical fact; did a juror swear that he could set aside any opinion he might hold and decide the case on the evidence, and should the juror’s protestation of impartiality have been believed; the trial court’s resolution of such questions is entitled, even on direct appeal, to special deference; although the CAAF has recognized that the legal question of actual bias approximates a factual question, it reviews actual bias claims for an abuse of discretion
4. implied bias is bias conclusively presumed as a matter of law; it is bias attributable in law to the prospective juror regardless of actual partiality; the CAAF has taken a broader view of implied bias based on its interpretation of RCM 912(f)(1)(N), which provides that a member shall be excused for cause whenever it appears that the member should not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality; the question to ask with respect to implied bias is whether the risk that the public will perceive that the accused received something less than a court of fair, impartial members is too high; and to answer this question, the totality of the circumstances are reviewed and it is assumed that the public is familiar with the unique structure of the military justice system; implied bias challenges are reviewed pursuant to a standard that is less deferential than abuse of discretion, but more deferential than de novo review
5. holding an inelastic attitude toward the appropriate punishment to adjudge if the accused is convicted is grounds for an actual bias challenge under RCM 912(f)(1)(N); however, a mere predisposition to adjudge some punishment upon conviction is not, standing alone, sufficient to disqualify a member; rather, the test is whether the member’s attitude is of such a nature that he will not yield to the evidence presented and the judge’s instructions
6. in this murder case, the military judge did not abuse his discretion in denying challenges for cause for actual and implied bias against three court members – two for not being impartial by stating the they believed that death was the appropriate punishment for an accused charged with the premeditated murder of a child and one who had prior experience as a police officer and distrusted defense counsel; in follow-up questioning, the two members both agreed that the death penalty was not an automatic punishment for the premeditated murder of a child and that in adjudging a sentence, they would consider all the extenuation and mitigation evidence presented; and with respect to the other member, he explained that he did not view all defense counsel in a negative light, and the judge noted as well that being a former police officer was not a per se basis to challenge a member for cause

Core Criminal Law Subjects: Witnesses: Generally

1. Article 46, UCMJ, grants an accused equal opportunity with the trial counsel to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe

Core Criminal Law Subjects: Witnesses: Experts

1. to be entitled to expert assistance, an accused has the burden of establishing that a reasonable probability exists that (1) an expert would be of assistance to the defense, and (2) that denial of expert assistance would result in a fundamentally unfair trial; in order to satisfy the first prong of this test, the defense must show (1) why the expert is necessary, (2) what the expert would accomplish for the accused, and (3) why defense counsel is unable to gather and present the evidence that the expert would be able to develop
2. in this murder case, the military judge did not abuse his discretion when he denied appellant’s request for expert assistance to test evidentiary items found at the crime scene that might yield evidence of a third-party actor where appellant only showed a mere possibility that the expert would be of assistance and failed to demonstrate a reasonable probability; in any event, the denial of expert assistance did not result in a fundamentally unfair trial where the military judge specifically authorized appellant to introduce items found in the home that the prosecution had determined through testing were not inculpatory, and to argue that this evidence suggested someone other than appellant committed the offenses

Core Criminal Law Subjects: Witnesses: Production of

1. Article 46, UCMJ, grants an accused equal opportunity with the trial counsel to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe
2. in this case, after weighing the factors of relevance and necessity, the military judge did not abuse his discretion in refusing to permit the testimony of three witnesses where there was simply no probative evidence that their testimony would have supported a defense theory that a person other than appellant committed the offenses; rather, there was just appellant’s speculation; the defense failed to proffer any evidence to support its theory

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Burdens, Standards › Appointment of experts

1. to be entitled to expert assistance, an accused has the burden of establishing that a reasonable probability exists that (1) an expert would be of assistance to the defense, and (2) that denial of expert assistance would result in a fundamentally unfair trial; in order to satisfy the first prong of this test, the defense must show (1) why the expert is necessary, (2) what the expert would accomplish for the accused, and (3) why defense counsel is unable to gather and present the evidence that the expert would be able to develop

Trial Stages: Merits: Trial Procedures › Voir dire

1. voir dire should be used to obtain information for the intelligent exercise of challenges; it is, however, subject to limitations
2. generally, hypothetical questions provide a permissible means of exploring potential grounds for challenge; however, neither side is entitled to a commitment during voir dire about what the members will ultimately do with respect to the sentence
3. in this murder case, the military judge did not abuse his discretion by preventing the defense during voir dire from asking court members to express opinions as to whether the death penalty would be appropriate by referencing aggravating actors without reference to extenuation and mitigation; the military judge permitted a scope of voir dire broad enough for appellant to challenge members who would not be able impartially to follow the court’s instructions and evaluate the evidence and to ascertain whether the prospective panel members would impose the death penalty regardless of the facts and circumstances of the conviction

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. a trial court’s resolution of a question of actual bias with respect to a challenge for cause is entitled on direct appeal to special deference; although the CAAF has recognized that the legal question of actual bias approximates a factual question, it reviews actual bias claims for an abuse of discretion
2. the CAAF has taken a broader view of implied bias based on its interpretation of RCM 912(f)(1)(N), which provides that a member shall be excused for cause whenever it appears that the member should not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality; the question to ask with respect to implied bias is whether the risk that the public will perceive that the accused received something less than a court of fair, impartial members is too high; and to answer this question, the totality of the circumstances are reviewed and it is assumed that the public is familiar with the unique structure of the military justice system; implied bias challenges are reviewed pursuant to a standard that is less deferential than abuse of discretion, but more deferential than de novo review

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

1. an appellate court reviews questions of jurisdiction de novo
2. an appellate court reviews a military judge’s ruling on the production of witnesses for an abuse of discretion; it will not set aside a judicial denial of a witness request unless it has a definite and firm conviction that the trial court committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors
3. an appellate court reviews a military judge’s ruling on requests for expert assistance for an abuse of discretion; the trial court abuses its discretion if its ruling is arbitrary, fanciful, clearly unreasonable, or clearly erroneous
4. an appellate court reviews a military judge’s limitations on voir dire for a clear abuse of discretion
5. a trial court’s resolution of a question of actual bias with respect to a challenge for cause is entitled on direct appeal to special deference; although the CAAF has recognized that the legal question of actual bias approximates a factual question, it reviews actual bias claims for an abuse of discretion
6. the CAAF has taken a broader view of implied bias based on its interpretation of RCM 912(f)(1)(N), which provides that a member shall be excused for cause whenever it appears that the member should not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality; the question to ask with respect to implied bias is whether the risk that the public will perceive that the accused received something less than a court of fair, impartial members is too high; and to answer this question, the totality of the circumstances are reviewed and it is assumed that the public is familiar with the unique structure of the military justice system; implied bias challenges are reviewed pursuant to a standard that is less deferential than abuse of discretion, but more deferential than de novo review