U.S. v. Hasan, 84 M.J. 181

First Principles: Constitutional Matters: Generally

1. without question, the Sixth-Amendment right to a public trial is applicable to courts-martial; in addition to the Sixth Amendment, there is a regulatory right to open courts-martial in RCM 806; despite this general rule, both the Sixth Amendment and RCM 806 make exceptions to the right to have a public trial, but any exclusion must be used sparingly with the emphasis always toward a public trial

First Principles: Constitutional Matters: Cruel and Unusual Punishment

1. appellant's claim of cruel and unusual punishment for alleged forcible shavings fails because the record provides no information or description about what these forcible shavings allegedly entailed; thus, there is no basis in the record to divine whether the force complained of consisted merely of appellant's involuntary acquiescence to the Army's grooming policy as he unwillingly shaved himself, or whether the alleged incidents of forcible shaving involved some type of physical coercion by government officials
2. even if an appellate court were to assume that appellant's rights under the Religious Freedom Restoration Act were violated by the Army's grooming standards in post-trial confinement, that fact standing alone does not serve as a sufficient basis to conclude that an Eighth Amendment or Article 55 claim for cruel and unusual punishment was meritorious; the denial of an exception to the Army's grooming policy was not, standing alone, an objectively, sufficiently serious act or omission resulting in the denial of necessities that automatically constituted a violation of the Eighth Amendment; an institution's obligation under the Eighth Amendment is at an end if it furnishes sentenced prisoners with adequate food, clothing, shelter, sanitation, medical care, and personal safety; in addition, appellant has not demonstrated a culpable state of mind from prison officials that amounts to deliberate indifference to his health and safety

First Principles: Constitutional Matters: Due Process

1. the prohibition in Article 45(b), UCMJ, on guilty pleas to any charges or specifications alleging offenses for which the death penalty may be adjudged did not violate due process

First Principles: Constitutional Matters: First Amendment

1. the First Amendment gives the public the right of access to criminal trials; the press enjoys the same right and has standing to complain if access is denied

First Principles: Constitutional Matters: Right to Counsel

1. the Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense; that right includes the right to waive counsel and to represent oneself
2. while the Constitution does not force a lawyer upon a defendant, it does require that any waiver of the right to counsel be knowing, voluntary, and intelligent; the voluntariness of a waiver is measured by reference to the surrounding circumstances; and a simple disagreement with counsel about a certain line of defense is not enough to establish involuntary waiver of counsel

First Principles: Constitutional Matters: Right to Present a Defense

1. the prohibition in Article 45(b), UCMJ, on guilty pleas to any charges or specifications alleging offenses for which the death penalty may be adjudged did not violate any Sixth Amendment right of autonomy to maintain innocence or admit guilt as applied to accused who wanted to plead guilty and who declined military judge's repeated offers to instruct panel members during sentencing that accused had sought to plead guilty during findings but was prohibited from doing so by operation of law

Military Justice Personnel: Defense Function: Right to Counsel

1. the Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense; that right includes the right to waive counsel and to represent oneself
2. while the Constitution does not force a lawyer upon a defendant, it does require that any waiver of the right to counsel be knowing, voluntary, and intelligent; the voluntariness of a waiver is measured by reference to the surrounding circumstances; and a simple disagreement with counsel about a certain line of defense is not enough to establish involuntary waiver of counsel
3. in this case, appellant voluntarily waived his right to counsel and validly elected to proceed pro se where (1) appellant affirmed that his decision was not the result of any threats or force and was made of his own free will, (2) there is nothing in the record indicating that threats, coercion, or physical or psychological force were involved, (3) appellant did not seek to replace members of his defense team but instead simply moved to represent himself without complaining to the court that his counsel was incompetent, unprepared, or otherwise unable to provide adequate representation, (4) appellant signed a document waiving his right to counsel, (5) although appellant argues on appeal that his waiver of counsel was not voluntary because going into trial, he desired to maintain his innocence, but his defense team sought to admit his guilt, appellant's claim that at trial he desired to maintain his innocence is belied by the record when he openly admitted that he was the shooter and he made no discernible effort to justify or explain the shootings or to otherwise absolve himself of guilt, and (6) appellant rejected the military judge's offer to explore obtaining new counsel
4. an accused's decision to proceed pro se during post-trial clemency proceedings is valid only if the accused knowingly, voluntarily, and intelligently waived the right to counsel; this inquiry into whether a waiver was knowing, voluntary, and intelligent is case specific

Military Justice Personnel: Defense Function: Responsibilities

1. when an accused is represented by counsel, he or she has the right to insist that counsel refrain from admitting guilt
2. it is the defendant's prerogative, not counsel's, to decide on the objective of his defense; however, decisions such as what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence, and every other decision properly considered to be trial management are left to counsel; included within counsel's purview is resolving a strategic dispute about whether to concede an element of a charged offense; some decisions, however, are reserved for the client -- notably, whether to plead guilty, waive the right to a jury trial, testify in one's own behalf, and forgo an appeal; autonomy to decide the objective of the defense belongs in this latter category

Military Justice Personnel: Prosecution Function: Trial Counsel

1. during sentencing argument, the trial counsel is at liberty to strike hard, but not foul, blows; trial counsel may argue the evidence of record, as well as all reasonable inferences fairly derived from such evidence, but may not inject his personal opinion into the panel's deliberations, inflame the members' passions or prejudices, or ask them to convict the accused on the basis of criminal predisposition; trial counsel's argument must be viewed in context because it is improper to surgically carve out a portion of the argument with no regard to its context

Military Justice Personnel: Prosecution Function: Misconduct

1. prosecutorial misconduct occurs when trial counsel oversteps the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense; prosecutorial misconduct can be generally defined as action or inaction by a prosecutor in violation of some legal norm or standard, e.g., a constitutional provision, a statute, a Manual rule, or an applicable professional ethics canon

Military Justice Personnel: Military Judge: Generally

1. whether an appellate military judge must recuse himself or herself from sitting on a given case is assessed according to the standards laid out in RCM 902; in relevant part, that rule provides that a military judge shall disqualify himself or herself in any proceeding in which that military judge's impartiality might reasonably be questioned; and the standard for deciding the MCM judicial-disqualification question is whether a reasonable person who knew all the facts might question these appellate military judges' impartiality; this requirement for recusal enhances public confidence in the judicial system by ensuring that judges avoid the appearance of partiality
2. the tension created by the placement of the military judiciary within the officer personnel structure requires military judges to be sensitive to particular circumstances that may require consideration of recusal; each case must be assessed on its own merits; the mere fact that military judges may issue rulings adverse to the interests of superior officers, however, does not in itself preclude those judges from exercising independence in their judicial rulings; also, standing alone, preparation of fitness reports for appellate military judges by senior judge advocates does not create a circumstance in which the impartiality of a judge might reasonably be questioned under RCM 902(a); however, there may be facts and circumstances that call for recusal
3. in this case, the removal of the SJA as the rater of the CCA judges did not moot the issue of whether the judges were required to recuse themselves from appellant's case where the CCA had decided motions on issues pertaining to the SJA before he was removed as the judges' rater and thereby calling the validity of those decisions into question

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. under military law, a military judge does not have a duty to inquire into the reasons behind an accused's dissatisfaction with counsel as part of the inquiry to determine if the accused's waiver of counsel was knowing, intelligent, and voluntary
2. in this case, the military judge was not required to appoint substitute counsel because appellant's waiver of counsel was not exclusively tied to his disapproval of his trial defense counsel's religious fervor defense and because he disclaimed wanting any counsel
3. notwithstanding the absence of a challenge or waiver of a challenge by the parties, a military judge may, in the interest of justice, excuse a member against whom a challenge for cause would lie; under this rule, a military judge has the discretionary authority to sua sponte excuse a member but has no duty to do so

Military Justice Personnel: Military Judge: Discretion

1. in this case, the military judge did not abuse his discretion in not sua sponte excusing a panel member who provided concerning answers on his first questionnaire but moderated those responses in a second questionnaire and during individual voir dire assured the military judge that he could decide the case based solely on the evidence admitted in court, could follow the judge's instructions, and knew of no reason why he could not be impartial; appellant fully understood the panel selection process and did not challenge the member for cause or use a peremptory challenge to strike him from the panel; and when questioned by the military judge about this matter, appellant agreed that he was specifically waiving all challenges for cause against a group of members that included this member; and furthermore, although appellant proceeded pro se, he had standby counsel and had been provided with the services of a self-selected, government-funded jury consultant
2. in this case, the CCA judges did not abuse their discretion in declining to recuse themselves when they decided issues pertaining to errors allegedly committed by the SJA who was now their superior officer and rater where (1) in terms of the rulings made by the CCA judges on two motions during the time when the SJA still served as their rater, a reasonable person would conclude that the defense requests were novel, ancillary not only to the question of the guilt or innocence of the accused but also to the question of whether the case was properly handled procedurally, and that the decision by the CCA judges to deny the requests was not a result of them trying to curry favor with the SJA, and (2) the sole assignment of error at the CCA involving the SJA did not challenge the substance of his legal advice

Military Justice Personnel: Court Members: Generally

1. ordinarily, an accused waives a ground for challenge if the accused knew of or could have discovered by the exercise of diligence the ground for challenge and failed to raise it in a timely manner
2. notwithstanding the absence of a challenge or waiver of a challenge by the parties, a military judge may, in the interest of justice, excuse a member against whom a challenge for cause would lie; under this rule, a military judge has the discretionary authority to sua sponte excuse a member but has no duty to do so
3. absent evidence to the contrary, it is presumed that the members understood and followed the military judge's instructions

Military Justice Personnel: Court Members: Challenges for Cause

1. when an accused believes there are grounds for challenging a member following voir dire, the accused shall state his or her challenges for cause

Military Justice Personnel: Staff Judge Advocate: Qualifications / Disqualifications

1. when challenging an SJA's authority to provide pretrial advice, an appellant has the initial burden of making a prima facie case that the SJA was disqualified; Article 6(c), UCMJ, provides grounds for disqualification in a case when the SJA acted as a member, military judge, trial counsel, defense counsel, or investigating officer in the same case; CAAF precedent also provides for the disqualification of an SJA: when (1) he or she displays a personal interest or feeling in the outcome of a particular case; (2) there is a legitimate factual controversy with defense counsel; or, (3) he or she fails to be objective, such that it renders the proceedings unfair or creates the appearance of unfairness
2. SJA's actions of calling his wife to ensure safety of her and his family when he learned of a mass shooting at a soldier readiness processing center at post on which he and his family lived did not reflect a disqualifying personal interest in appellant's case where no member of the SJA's family was harmed in attack or was ever in direct danger
3. SJA's concern for the safety of a subordinate during a mass shooting at a soldier readiness processing center was not a disqualifying personal interest in appellant's case where the subordinate was uninjured during attack and was not a named victim
4. SJA's visit to the scene of a mass shooting at a soldier readiness processing center did not reflect a disqualifying personal interest in appellant's case where the SJA did not serve as an investigator of the crime and the SJA was required to expose himself to disturbing images and witness accounts in order to effectively perform his role as SJA
5. SJA's purported comments to a subordinate after visiting the scene of a mass shooting that the visit was a difficult experience that would make it hard to sleep at night did not constitute a disqualifying personal interest in appellant's case where the comments were mere expressions of empathy and there was nothing necessarily incompatible with expressing empathy at the time of an incident and later being objective when performing legal duties
6. SJA's status as part of the community of a post containing a soldier readiness processing center that was the scene of a mass shooting did not reflect a disqualifying personal interest in appellant's case where although the attack might have had a personal impact on SJA, he did not display a personal interest or feeling in the outcome of appellant's case

Military Justice Personnel: Convening Authority: Disqualification

1. under the version of Article 60, UCMJ, in effect at the time of appellant's court-martial authorized, two circumstances had been identified in which a convening authority was disqualified from taking discretionary post-trial action on findings and sentence: (1) the convening authority was an accuser, had a personal interest in the outcome of the case, or had a personal bias toward the accused; or (2) the convening authority displayed an inelastic attitude toward the performance of their post-trial responsibility; stated differently, where a convening authority revealed that the door to a full and fair post-trial review process was closed, the convening authority must be disqualified; and when disqualification occurs, a different person authorized under the UCMJ is designated to exercise the powers outlined in Article 60
2. if a disqualified convening authority takes post-trial action on a case, this constitutes error; and in order to obtain relief, an appellant must make a colorable showing of possible prejudice resulting from the error; by definition, assessments of prejudice during the clemency process are inherently speculative; prejudice, in a case involving clemency, can only address possibilities in the context of an inherently discretionary act

Core Criminal Law Subjects: Defenses: Generally

1. the test for whether a special defense may be raised at trial is whether the accused proffers some evidence of the elements of the defense

Core Criminal Law Subjects: Defenses: Affirmative Defenses

1. defense of another may excuse criminal liability; military law recognizes defense of another as a special defense to homicide; this defense requires that the object of the accused's protection have a right to self-defense in their own right and the accused did not use more force than the person defended was lawfully entitled to use under the circumstances; as such, the principles of self-defense apply to defense of another
2. the test for whether the special defense of defense of another may be raised at trial is whether the accused proffers some evidence of the elements of the defense
3. it is axiomatic that when it comes to the special defense of another, one must reasonably believe that others are in immediate danger of unlawful bodily harm
4. in this case, there was no support in the record for appellant to claim that he reasonably believed members of the Taliban in Afghanistan were in immediate danger of unlawful bodily harm from the victims he attacked at the Fort Hood soldier readiness processing policy center; accordingly, the military judge did not err in denying appellant the opportunity to argue a defense of another special defense

Core Criminal Law Subjects: Defenses: Self-Defense

1. in cases of homicide, an individual has a right to self-defense where they apprehended, on reasonable grounds, that death or grievous bodily harm was about to be inflicted wrongfully on that individual, and that the individual believed that the force the individual used was necessary for protection against death or grievous bodily harm

Core Criminal Law Subjects: Evidence: Generally

1. res gestae is defined as the events at issue, or other events contemporaneous with them; res gestae evidence is vitally important in many trials; it enables the factfinder to see the full picture so that the evidence will not be confusing and prevents gaps in a narrative of occurrences which might induce unwarranted speculation
2. in this capital murder case, the military judge did not err by admitting into evidence the fact that one of the victims was pregnant at the time she was shot and that she shouted "My baby! My baby!"; the evidence of the victim's pregnancy and her screams were properly admitted as res gestae, where witnesses to the shooting testified to what they heard her shout before the shooting, where her supervisor testified as to why she was at the scene of the shooting, and the medical examiner's testimony only confirmed what the members had already heard – that she was pregnant

Core Criminal Law Subjects: Evidence: Hearsay › Generally

1. res gestae is defined as the events at issue, or other events contemporaneous with them; res gestae evidence is vitally important in many trials; it enables the factfinder to see the full picture so that the evidence will not be confusing and prevents gaps in a narrative of occurrences which might induce unwarranted speculation
2. in this capital murder case, the military judge did not err by admitting into evidence the fact that one of the victims was pregnant at the time she was shot and that she shouted "My baby! My baby!"; the evidence of the victim's pregnancy and her screams were properly admitted as res gestae, where witnesses to the shooting testified to what they heard her shout before the shooting, where her supervisor testified as to why she was at the scene of the shooting, and the medical examiner's testimony only confirmed what the members had already heard – that she was pregnant

Trial Stages: Merits: Guilty Pleas

1. (in this case, at the time of trial, appellant was prohibited from pleading guilty to any charge or specification alleging an offense for which the death penalty may be adjudged (however, a new version of Article 45(b), UCMJ, now provides otherwise)
2. there is no absolute right to have a guilty plea accepted, nor, more generally, to enter any guilty plea that an accused might wish to enter
3. in this case, the military judge appropriately applied the statutory prohibition of Article 45(b), UCMJ, on guilty pleas to any charges or specifications alleging offenses for which the death penalty may be adjudged to preclude accused from pleading guilty to lesser-included offenses in court-martial on charges of premeditated murder and attempted premeditated murder arising, where (1) the judge reasoned that it would have been possible for accused to have been convicted of the charged capital offense without presenting any additional evidence if he were permitted to plead guilty to unpremeditated murder and attempted premeditated murder, and (2) that judge identified that accepting pleas of guilty to unpremeditated murder and attempted unpremeditated murder would have been the factual equivalent to pleading guilty to a capital offense
4. prohibiting an accused from pleading guilty is not a structural error

Trial Stages: Merits: Trial Procedures › Generally

1. as provided in RCM 806, courts-martial shall be open to the public unless (1) there is a substantial probability that an overriding interest will be prejudiced if the proceedings remain open; (2) closure is no broader than necessary to protect the overriding interest; (3) reasonable alternatives to closure were considered and found inadequate; and (4) the military judge makes case-specific findings on the record justifying closure
2. the standard for closure of a courtroom equally applies to a party's request for closure and a military judge's sua sponte decision to close a courtroom

Trial Stages: Sentence and Punishment: Evidence

1. in this capital murder trial, a victim's pregnancy was relevant for sentencing as evidence in aggravation; evidence in aggravation includes, but is not limited to, evidence of financial, social, psychological, and medical impact on or cost to any person or entity who was the victim of an offense committed by the accused
2. victim impact testimony is admissible in capital cases to inform the panel about 'the specific harm caused by the accused; and in this capital case, the death of a victim's unborn child was directly related to or resulted from the offense of her killing of which appellant was convicted
3. in this capital case, although the victim's father testified that he and his unborn grandchild were victims of appellant's crimes, the military judge instructed the members that they could only consider this as evidence of the emotional impact on the victim's family and were required to bear in mind that the accused was to be sentenced only for the offenses of which he had been found guilty; absent evidence to the contrary, it is presumed that the members understood and followed the military judge's instructions with respect to this evidence

Trial Stages: Sentence and Punishment: Argument

1. during sentencing argument, the trial counsel is at liberty to strike hard, but not foul, blows; trial counsel may argue the evidence of record, as well as all reasonable inferences fairly derived from such evidence, but may not inject his personal opinion into the panel's deliberations, inflame the members' passions or prejudices, or ask them to convict the accused on the basis of criminal predisposition; trial counsel's argument must be viewed in context because it is improper to surgically carve out a portion of the argument with no regard to its context
2. it is appropriate for trial counsel to argue the evidence of record, as well as all reasonable inferences fairly derived from such evidence
3. in this case, trial counsel's sentencing argument that the members should reserve their emotion for the victims' souls, their compassion for the victims' families, and their mercy for the victims' memory was not inappropriate where it cannot be said that the trial counsel improperly urged the panel members to use their emotions when devising a proper sentence for appellant; to the contrary, the trial counsel urged the panel members to reserve their emotions for other purposes, and he grounded his overall sentencing argument on appellant's crimes
4. in this case within the context of the entire proceedings involving the murder of 13 victims, it was not inappropriate for trial counsel's sentencing argument to contain the undertones of war where appellant, a Muslim psychiatrist, set this tone in his opening statement with remarks that the dead bodies would testify that war is an ugly thing and that he was on the wrong side of America's war on Islam before he switched sides

Trial Stages: Sentence and Punishment: Capital Punishment

1. in capital cases, the penalty phase is undertaken to assess the gravity of a particular offense and to determine whether it warrants the ultimate punishment; capital sentencing must be reliable, accurate, and nonarbitrary; in this regard, it is of vital importance that the decisions made in that context be, and appear to be, based on reason rather than caprice or emotion
2. victim impact testimony is admissible in capital cases to inform the panel about the specific harm caused by the accused; and in this capital case, the death of a victim's unborn child was directly related to or resulted from the offense of her killing of which appellant was convicted

Trial Stages: Sentence and Punishment: Instructions

1. absent evidence to the contrary, it is presumed that the members understood and followed the military judge's instructions

Trial Stages: Sentence and Punishment: Cruel and Unusual Punishment

1. appellant's claim of cruel and unusual punishment for alleged forcible shavings fails because the record provides no information or description about what these forcible shavings allegedly entailed; thus, there is no basis in the record to divine whether the force complained of consisted merely of appellant's involuntary acquiescence to the Army's grooming policy as he unwillingly shaved himself, or whether the alleged incidents of forcible shaving involved some type of physical coercion by government officials

Trial Stages: Initial Review: Clemency

1. an appellant can properly add material to the record about prison conditions in the course of filing a clemency petition with the convening authority
2. an appellate court will assume that an appellant's decision to proceed pro se during post-trial clemency proceedings was valid only if he knowingly, voluntarily, and intelligently waived the right to counsel

Trial Stages: Initial Review: Execution of Sentences

1. appellant's claim that the denial of his requested exception from the Army's grooming policy in post-trial confinement unlawfully increased his sentence cannot succeed because the shaving requirement was a collateral administrative consequence of a sentence rather than punishment for purposes of the criminal law; furthermore, his claim does not merit scrutiny because he has not documented the nature of his purported forcible shavings in the record

Trial Stages: Appeals: Generally

1. an issue is moot only if resolving it would not result in a material alteration of the situation for the accused or for the government
2. in this case, the removal of the SJA as the rater of the CCA judges did not moot the issue of whether the judges were required to recuse themselves from appellant's case where the CCA had decided motions on issues pertaining to the SJA before he was removed as the judges' rater and thereby calling the validity of those decisions into question

Trial Stages: Appeals: Courts of Criminal Appeals › Sentence appropriateness

1. CCAs are empowered to review prison condition claims if the record contains information about those conditions
2. appellant's argument that his case should be remanded to the CCA because it erred by not considering his alleged forcible shavings in post-trial confinement in conducting its sentence appropriateness review is unavailing where he did not present to the convening authority any claim regarding confinement facility grooming policies, despite submitting a 450-page hand-written clemency submission; within the parameters of U.S . v. Jessie, 79 MJ 437 (CAAF 2020), nothing in the record before the CCA raised an issue regarding the purported shavings

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

1. to the extent that the record before the CAAF does document the rejection of appellant's requests for a religious accommodation from the Army's beard policy, and to the extent these rejections rise to the level of a Religious Freedom Restoration Act violation, appellant still is not entitled to relief because stand-alone RFRA claims and the resulting denial of prison privileges are not justiciable in the CAAF where its statutory mandate under Article 67(c) does not extend to the resolution of such matters; however, to the extent that appellant seeks to argue that a RFRA violation automatically constitutes cruel and unusual punishment in violation of Article 55 and/or the Eighth Amendment violation, both are justiciable in the CAAF

Trial Stages: Appeals: Harmless / Prejudicial Error

1. a military judge's deviation from the requirements of Article 45(b), UCMJ, governing guilty pleas is reviewed for harmless error
2. structural errors affect the entire conduct of the proceeding from beginning to end while discrete defects in the criminal process are not structural because they do not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence
3. prohibiting an accused from pleading guilty is not a structural error
4. in this case, even if Article 45(b)'s prohibition against an accused pleading guilty to a lesser included offense was contrary to the plain language of Article 45(b), UCMJ, that prohibited guilty pleas to any charges or specifications alleging offenses for which the death penalty may be adjudged, appellant was entitled to no relief because he suffered no prejudice under either the harmlessness standard or the harmlessness beyond a reasonable doubt standard; with regard to findings, even if the military judge should have allowed appellant to plead guilty to the lesser included offenses, appellant could not have been prejudiced by this alleged error because the only result was that appellant's guilt was subjected to adversarial testing, and through that testing, appellant was found guilty; and with regard to sentencing, although in a capital case, an accused may benefit from pleading guilty as part of a concerted effort to accept responsibility and to demonstrate contrition for his or her heinous criminal conduct, that scenario simply did not apply here where appellant demonstrated no remorse during his opening statement, did not put on a sentencing case or give a sentencing argument, and importantly, he went so far as to affirmatively reject the military judge's offer to instruct the panel members that he attempted to plead guilty but was not permitted to do so by operation of law
5. in assessing prejudice for improper sentencing argument, an appellate court balances (1) the severity of the improper argument, (2) any measures by the military judge to cure the improper argument, and (3) the evidence supporting the sentence; in cases of improper argument, each case must rest on its own peculiar facts
6. any error in the trial counsel's use of first-person plural pronouns in his sentencing argument was harmless beyond a reasonable doubt where the improper argument was isolated and not severe and where the evidence properly before the panel members included many aggravating circumstances such as appellant's murder of thirteen active duty or retired soldiers, his attempted murder of thirty-two other people (many of whom were grievously wounded), and the violation of the oaths he had taken as both an Army officer and a physician; the aggravation evidence was particularly damaging to appellant's case in light of the fact that he offered no evidence in extenuation or mitigation, and he delivered no sentencing argument to the panel members
7. even if an appellate court concludes that an SJA was disqualified from providing pretrial advice, that alone is not sufficient for relief; there must be prejudice
8. recommendations prepared by a disqualified officer are tested for prejudice under Article 59(a), UCMJ, which requires material prejudice to the substantial rights of the accused; prejudice is not presumed and such errors are not assessed for harmlessness beyond a reasonable doubt
9. assuming that the SJA had a disqualifying personal interest in appellant's case that arose from a mass shooting, appellant was not prejudiced by the SJA's recommendation that the convening authority refer the case to a GCM as a capital case or by the SJA's advice regarding member selection where it was impossible to believe that anyone else would have recommended action other than was recommended by the SJA, and the SJA's member selection advice was boilerplate in nature, simply laying out the law governing panel selection and advising the convening authority as to the number of members to be selected as well as excusal conditions and various other administrative details
10. when appellate military judges err in failing to recuse themselves in a case, an appellate court tests for prejudice using the following factors: (1) the risk of injustice to parties in the case; (2) the risk that the denial of relief will result in injustice in other cases; and (3) the risk of undermining public confidence in the judicial process
11. even if the CCA judges did abuse their discretion in declining to recuse themselves when they decided issues pertaining to errors allegedly committed by the SJA who was now their superior officer and rater, appellant did not suffer prejudice that would warrant a vacatur of the CCA's opinion where (1) the risk of injustice to appellant was low considering that the rulings on the motions related to the SJA would have been favorably ruled upon by any appellate military judge, (2) it was not necessary to vacate the CCA's opinion in order to ensure that appellate military judges exercise the appropriate degree of discretion in the future, and (3) the risk of undermining public confidence in the military judicial process by denying relief is low considering that in light of the tenuous nature of the substantive arguments by appellant, a remedy of vacatur would simply serve to undermine the public's confidence in the certainty of military appeals courts' judgments
12. if a disqualified convening authority takes post-trial action on a case, this constitutes error; and in order to obtain relief, an appellant must make a colorable showing of possible prejudice resulting from the error; by definition, assessments of prejudice during the clemency process are inherently speculative; prejudice, in a case involving clemency, can only address possibilities in the context of an inherently discretionary act

Trial Stages: Appeals: Preservation of Error / Plain Error

1. when an appellant challenges trial counsel's sentencing argument for the first time on appeal, an appellate court reviews for plain error; under this standard of review, an appellant ordinarily bears the burden not only of establishing that there is error and that the error is clear or obvious, but also that the error materially prejudices a substantial right; however, in those instances where a clear or obvious error rises to the level of a constitutional violation, the burden shifts to the government to show that the error was harmless beyond a reasonable doubt
2. in the plain error context, an appellate court determines whether the cumulative effect of an improper sentencing argument impacted the accused's substantial rights and the fairness and integrity of his trial; to perform this inquiry, the court examines whether trial counsel's comments, taken as a whole, were so damaging that it cannot be confident that the appellant was sentenced on the basis of the evidence alone
3. if an issue is forfeited, an appellate court reviews it for plain error; however, if appellant preserved the issue, an appellate court reviews it de novo
4. forfeiture is the failure to make the timely assertion of a right; in the instant case, appellant forfeited the issue of whether the convening authority was disqualified to perform a post-trial review of appellant's case after the convening authority awarded Purple Hearts to the victims of appellant's offenses where he did not claim that at the time he filed his brief with the CCA, he was unaware of or, using reasonable diligence, could not have been aware of, the Purple Heart awards ceremony; and where an issue has been forfeited, an appellate court applies a plain error standard of review
5. in this case, appellant failed to establish plain error for his claim that the convening authority was disqualified to perform a post-trial review of appellant's case after the convening authority awarded Purple Hearts to the victims of appellant's offenses; first, appellant did not meet his burden of showing a clear and obvious error where he failed to establish that the convening authority had a personal interest in the case, was biased against him, or had an inelastic attitude regarding the exercise of his post-trial discretionary authority; in presenting the medals, the convening authority was performing an administrative act and none of his statements valorizing the victims of the shooting indicated that he had the kind of personal connection with the case or bias that would be disqualifying; and second, even assuming that the convening authority's participation under Article 60 was clear or obvious error, appellant failed to demonstrate prejudice where appellant expressly stated in his post-trial submission to the convening authority that he was not seeking "mercy" (i.e., clemency) from him; an accused who fails to seek clemency from the convening authority has no basis for asserting on appeal that the convening authority prejudiced him by not granting him any

Trial Stages: Appeals: Remedies › Generally

1. overruling by implication is disfavored
2. when there has been a violation of the public-trial guarantee, the remedy should be appropriate to the violation, and a remedy should not be imposed that would be a windfall for the accused, and not in the public interest
3. not all structural errors merit automatic reversal; to the extent that U.S. v. Ortiz, 66 MJ 334 (CAAF 2008) required automatic reversal of a conviction for a Sixth Amendment public trial violation, it is overruled; however, in the case of a structural error where there is an objection at trial and the issue is raised on direct appeal, the accused generally is entitled to automatic reversal regardless of the error's actual effect on the outcome
4. in this case, automatic reversal of appellant's conviction for a Sixth Amendment public trial violation would be grossly disproportionate to the violation and would constitute a windfall for appellant that would not be in the public interest because (1) the closure was brief, (2) the closed hearing did not involve witness testimony, the admission of evidence, or any other matter directly related to the findings, (3) the military judge explored reasonable alternatives to closing the hearing, (4) the military judge placed her reasons for closing the hearing on the record, (5) these reasons by the military judge were not inadequate, and (6) the transcript of the closed session has been unsealed and the public can readily see what happened during that hearing

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

1. an appellate court reviews de novo whether an accused voluntarily waived his right to counsel
2. an appellate court reviews whether a military judge properly closed courtroom proceedings for an abuse of discretion
3. a military judge's decision whether or not to excuse a member sua sponte is subsequently reviewed for an abuse of discretion
4. an appellate court must be circumspect in using a cold record to second-guess a military judge's decision not to sua sponte excuse a panel member whom both parties apparently wanted to sit on the case
5. under an abuse of discretion standard, there must be more than a mere difference of opinion; the challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous
6. the constitutionality of an act of Congress is a question of law that an appellate court reviews de novo
7. an appellate court reviews matters of statutory interpretation de novo
8. an appellate court reviews whether there is harmless error de novo
9. an appellate court has the discretion to overrule its own precedent
10. when an appellant challenges trial counsel's sentencing argument for the first time on appeal, an appellate court reviews for plain error; under this standard of review, an appellant ordinarily bears the burden not only of establishing that there is error and that the error is clear or obvious, but also that the error materially prejudices a substantial right; however, in those instances where a clear or obvious error rises to the level of a constitutional violation, the burden shifts to the government to show that the error was harmless beyond a reasonable doubt
11. in the plain error context, an appellate court determines whether the cumulative effect of an improper sentencing argument impacted the accused's substantial rights and the fairness and integrity of his trial; to perform this inquiry, the court examines whether trial counsel's comments, taken as a whole, were so damaging that it cannot be confident that the appellant was sentenced on the basis of the evidence alone
12. in assessing prejudice for improper sentencing argument, an appellate court balances (1) the severity of the improper argument, (2) any measures by the military judge to cure the improper argument, and (3) the evidence supporting the sentence; in cases of improper argument, each case must rest on its own peculiar facts
13. an appellate court will assume that an appellant's decision to proceed pro se during post-trial clemency proceedings was valid only if he knowingly, voluntarily, and intelligently waived the right to counsel
14. whether the right to post-trial counsel was validly waived is a question of law that an appellate court reviews de novo
15. the issue of whether an SJA is disqualified from participating in court-martial proceedings is a question of law which an appellate court reviews de novo
16. when challenging an SJA's authority to provide pretrial advice, an appellant has the initial burden of making a prima facie case that the SJA was disqualified
17. in determining whether an SJA is disqualified, an appellate court will consider the action taken, the position of the person that would normally take that action, and the capacity in which the action is claimed to have been taken
18. even if an appellate court concludes that an SJA was disqualified from providing pretrial advice, that alone is not sufficient for relief; there must be prejudice
19. recommendations prepared by a disqualified officer are tested for prejudice under Article 59(a), UCMJ, which requires material prejudice to the substantial rights of the accused; prejudice is not presumed and such errors are not assessed for harmlessness beyond a reasonable doubt
20. an appellate judge's decision on recusal is reviewed for an abuse of discretion; an appellate judge's ruling constitutes an abuse of discretion if it is arbitrary, fanciful, clearly unreasonable or clearly erroneous, not if a superior appellate court merely would reach a different conclusion
21. the standard for deciding the MCM judicial-disqualification question is whether a reasonable person who knew all the facts might question these appellate military judges' impartiality; this requirement for recusal enhances public confidence in the judicial system by ensuring that judges avoid the appearance of partiality
22. when appellate military judges err in failing to recuse themselves in a case, an appellate court tests for prejudice using the following factors: (1) the risk of injustice to parties in the case; (2) the risk that the denial of relief will result in injustice in other cases; and (3) the risk of undermining public confidence in the judicial process
23. whether an appellant has intentionally waived an issue is a legal question reviewed by an appellate court de novo
24. if an issue is forfeited, an appellate court reviews it for plain error; however, if appellant preserved the issue, an appellate court reviews it de novo
25. the question of whether a special defense applies under the circumstances of a case is a matter of law that an appellate court reviews de novo

Trial Stages: Appeals: Waiver

1. an appellate court will assume that an appellant's decision to proceed pro se during post-trial clemency proceedings was valid only if he knowingly, voluntarily, and intelligently waived the right to counsel
2. whether the right to post-trial counsel was validly waived is a question of law that an appellate court reviews de novo
3. an accused's decision to proceed pro se during post-trial clemency proceedings is valid only if the accused knowingly, voluntarily, and intelligently waived the right to counsel; this inquiry into whether a waiver was knowing, voluntary, and intelligent is case specific
4. in this case, appellant knowingly, voluntarily, and intelligently waived his right to counsel during post-trial clemency proceedings where (1) the military judge advised appellant on his post-trial rights and appellant signed a form acknowledging that counsel had advised him of these rights, (2) appellant submitted a handwritten letter to the SJA stating that he wished to proceed pro se, (3) the SJA confirmed appellant's waiver with his counsel, (4) the SJA did not have any reason to question appellant's sincerity with respect to the waiver, and (5) appellant has not pointed to any record evidence or produced any affidavits suggesting that his waiver of the right to counsel during post-trial proceedings was anything other than voluntary, knowing, and intelligent
5. an intentional waiver occurs when a party intentionally relinquishes or abandons a known right
6. a waiver by operation of law happens when a procedural rule or precedent provides that an objection is automatically waived upon the occurrence of a certain event and that event has occurred
7. in this case, appellant did not waive the issue of whether the convening authority was disqualified to perform a post-trial review of appellant's case after the convening authority awarded Purple Hearts to the victims of appellant's offenses where nothing in the record establishes that appellant was aware of the convening authority's role in the Purple Heart ceremony prior to post-trial submission

Miscellaneous Matters: Judicial Review: Stare Decisis

1. under the doctrine of horizontal stare decisis, an appellate court must adhere to its own prior decisions, unless it finds compelling reasons to overrule itself; however, applying stare decisis is not an inexorable command, and a court is not bound by precedent when there is a significant change in circumstances after the adoption of a legal rule, or an error in legal analysis
2. stare decisis is most compelling where courts undertake statutory construction
3. to determine whether to depart from stare decisis, an appellate court applies the following factors: whether the prior decision is unworkable or poorly reasoned, any intervening events, the reasonable expectations of servicemembers, and the risk of undermining public confidence in the law; and the party requesting that a court overturn precedent bears a substantial burden of persuasion; in addition, a party must present a special justification for a court to overrule prior precedent