U.S. v. Kim, 83 M.J. 235

First Principles: Constitutional Matters: Generally

1. when a charge against a servicemember may implicate both criminal and constitutionally protected conduct, the distinction between what is permitted and what is prohibited constitutes a matter of critical significance

First Principles: Constitutional Matters: First Amendment

1. the First Amendment to the United States Constitution states that Congress shall make no law abridging the freedom of speech; although servicemembers are not excluded from First Amendment protection, it is important to remember that the different character of the military community and of the military mission requires a different application of those protections; the fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it
2. if the First Amendment means anything, it means that the government has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch; the heritage of the Constitution of the United States rebels at the thought of giving government the power to control men’s minds
3. in this case, where appellant was charged with indecent conduct by searching the internet for pornographic videos using the search terms “rape sleep” and “drugged sleep,” such a charge implicated the First Amendment right to be free from unwanted government intrusion into one’s privacy

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. during a guilty plea inquiry, the military judge is charged with determining whether there is an adequate basis in law and fact to support the plea before accepting it
2. in a guilty plea situation, the colloquy between the military judge and an accused must contain an appropriate discussion and acknowledgment on the part of the accused of the critical distinction between permissible and prohibited behavior
3. the fundamental requirement of plea inquiry involves a dialogue in which the military judge poses questions about the nature of the offense and the accused provides answers that describe his personal understanding of the criminality of his or her conduct

Military Justice Personnel: Military Judge: Discretion

1. a military judge abuses his or her discretion by failing to obtain from the accused an adequate factual basis to support the plea, an area in which an appellate court affords significant deference, or if his or her ruling is based on an erroneous view of the law
2. in this case, where appellant was charged with indecent conduct and that conduct implicated a First Amendment constitutional gray area with respect to the right to privacy, the plea colloquy needed to establish why possibly constitutionally protected material could still be service discrediting in the military context; in the absence of a colloquy between the military judge and appellant that contained an appropriate discussion and acknowledgment on the part of appellant between permissible and prohibited behavior, there was a substantial basis in law for questioning the plea, the military judge abused his discretion in accepting the plea, and the plea was improvident

Core Criminal Law Subjects: Crimes: Article 134: Indecent Conduct Offenses on/after 1 Jan 2019

1. conduct that is constitutionally protected for civilians could still qualify as prejudicing good order and discipline or bringing discredit upon the military; however, images viewed for sexual gratification do not necessarily lose their First Amendment protection
2. in this case, where appellant was charged with indecent conduct by searching the internet for pornographic videos using the search terms “rape sleep” and “drugged sleep,” such a charge implicated the First Amendment right to be free from unwanted government intrusion into one’s privacy
3. in this case, where appellant was charged with indecent conduct and that conduct implicated a First Amendment constitutional gray area with respect to the right to privacy, the plea colloquy needed to establish why possibly constitutionally protected material could still be service discrediting in the military context; in the absence of a colloquy between the military judge and appellant that contained an appropriate discussion and acknowledgment on the part of appellant between permissible and prohibited behavior, there was a substantial basis in law for questioning the plea, the military judge abused his discretion in accepting the plea, and the plea was improvident

Trial Stages: Merits: Guilty Pleas

1. during a guilty plea inquiry, the military judge is charged with determining whether there is an adequate basis in law and fact to support the plea before accepting it
2. because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the accused possesses an understanding of the law in relation to the facts
3. in a guilty plea situation, the colloquy between the military judge and an accused must contain an appropriate discussion and acknowledgment on the part of the accused of the critical distinction between permissible and prohibited behavior
4. the fundamental requirement of plea inquiry involves a dialogue in which the military judge poses questions about the nature of the offense and the accused provides answers that describe his personal understanding of the criminality of his or her conduct
5. in this case, where appellant was charged with indecent conduct and that conduct implicated a First Amendment constitutional gray area with respect to the right to privacy, the plea colloquy needed to establish why possibly constitutionally protected material could still be service discrediting in the military context; in the absence of a colloquy between the military judge and appellant that contained an appropriate discussion and acknowledgment on the part of appellant between permissible and prohibited behavior, there was a substantial basis in law for questioning the plea, the military judge abused his discretion in accepting the plea, and the plea was improvident

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

1. an appellate court reviews a military judge’s decision to accept a guilty plea for an abuse of discretion and questions of law arising from the guilty plea de novo
2. an appellate court gives the military judge broad discretion in the decision to accept a guilty plea because the facts are undeveloped in such cases
3. in reviewing a military judge’s decision to accept a guilty plea, an appellate court applies a substantial basis test: Does the record as a whole show a substantial basis in law and fact for questioning the guilty plea?