Military Judge rules new Article 120 unconstitutional
On August 12, Marine Corps Lieutenant Colonel Raymond Beal ruled that the new Article 120, UCMJ violated an accused’s Fifth Amendment right to due process of law. Machinist’s Mate Second Class William...
View ArticleBreaking News: No Man Realizes Fairley is Apprendi Case, Nearly Fries...
Ok, since about June 28, 2008 I have been largely asleep at the MilJus switch. And since August 12, 2008 I have been asleep at the Apprendi switch. However, this morning when I read Maj. Hoege’s...
View ArticleArmy Trial Judiciary issues new-Article 120 Benchbook guidance
One of the many reasons to maintain the ability to post anonymously is that anonymous posters sometimes provide very helpful information. Here’s an anonymous post from earlier today: On 4 Dec the Chief...
View ArticleBZ NMCCA!!!
At this very moment, I am sitting in my home, sipping an ice cold Coke as I type with one hand, and listening to Maj Elizabeth Harvey, USMC, arguing an Article 62 appeal to NMCCA earlier today. NMCCA...
View ArticleNMCCA argument webcast is a total success
The sound quality for NMCCA’s inaugural oral argument webcast is outstanding — better than for CAAF’s oral arguments. Both counsel were superb and the bench was hot. Any lawyer who stumbles across the...
View ArticleAmended Art. 120 Constitutional Says Unanimous, En Banc NMCCA
Here is a link to NMCCA’s unanimous, en banc opinion in United States v. Neal, __ M.J. ___, No. NMCCA 200800746 (N-M. Ct. Crim. App. March 31, 2009) (en banc). Judge Eric Price, writing for a unanimous...
View ArticleMotion to extend time to file certificate of review in Neal
The No Man previously discussed NMCCA’s en banc opinion unanimously rejecting a constitutional challenge to the new Article 120. United States v. Neal, __ M.J. ___, No. NMCCA 200800746 (N-M. Ct. Crim....
View ArticleBREAKING NEWS: NMCCA grants government’s Crotchett appeal, rejecting new...
In a published en banc decision released today, NMCCA rejected a challenge to the new Article 120.United States v. Crotchett, __ M.J. ___, No. NMCCA 200800770 (N-M. Ct. Crim. App. May 12, 2009) (en...
View ArticleCoast Guard trial judge moots Article 120 challenge by deciding to give...
Here is a Coast Guard trial judge’s ruling denying a defense challenge to the new Article 120, but deciding to give the instruction recommended by the Military Judges’ Benchbook, which “moots the...
View ArticleNavy JAG certifies Article 120 constitutionality case to CAAF
On Friday, the Judge Advocate General of the Navy certified a case to CAAF dealing with the constitutionality of the new Article 120 and CAAF ordered an expedited briefing schedule. That expedited...
View ArticleCAAF to hear oral argument on new Article 120’s constitutionality on 21...
Today’s CAAF daily journal update included an order dealing with the timing of CAAF’s review of a recent NMCCA decision rejecting a challenge to the new Article 120’s constitutionality. For purposes of...
View ArticleAudio of oral argument in NMCCA new Article 120 case
Here’s a link to the audio of yesterday’s oral argument in United States v. Medina, another case in which NMCCA is considering the constitutionality of the new Article 120.
View ArticleMedina – NMCCA’s Odd Twist on Art. 120
The Navy-Marine Corps Court of Criminal Appeals released today its en banc decision in United States v. Medina, No. 200900053, __ M.J. __ (N-M. Ct. Crim. App. Dec. 17, 2009). The main portion of the...
View ArticleCAAF to consider Article 120(c)(2)’s constitutionality
CAAF today granted review of a significant issue: “Whether the lower court erred in holding that Article 120(c)(2), UCMJ, is not facially unconstitutional.” United States v. Medina, __ M.J. ___, No....
View ArticleGrant with briefs, grant with no briefs, grant and remand
Two of the most contentious areas in current military appellate practice are challenges to the new Article 120 and application of Melendez-Diaz to urinalysis results. CAAF today granted review of...
View ArticleActing SG waives opposition in new Article 120 case
On Friday, the Acting Solicitor General waived the United States’ right to respond to the cert petition in Neal v. United States, No. 09-1414, which we discussed here. The cert petition is available...
View ArticleNeal cert petition distributed for 17 June conference
We previously noted the cert petition in Neal v. United States, No. 09-1414, challenging the new Article 120. The cert petition has been distributed for the Supremes’ 17 June conference.
View ArticleSupremes call for SG’s response to Neal cert petition
As indicated here, yesterday the Supreme Court asked the Solicitor General to respond to the cert petition in Neal v. United States, No. 09-1414, which challenges the new Article 120.
View ArticleNo SG filing in Neal yet
Today’s SCOTUS online blog update indicates that the SG’s office has received a further extension to reply to the Neal cert petition, No. 09-1414, until 23 August. So we’ll have to wait another couple...
View ArticleNMCCA unpublished opinion setting aside Article 120 conviction
Here’s a link to an interesting unpublished NMCCA opnion setting aside an Article 120 conviction because the military judge failed to sua sponte instruct on the affirmative defense of consent. United...
View ArticleSG’s opposition to Neal cert petition
Here’s a link to the SG’s opposition to the cert petition in Neal v. United States, No. 09-1414, which deals with the new Article 120’s constitutionality.
View ArticleNeal reply
Here’s a link to the petitioner’s reply to the SG’s opposition to the cert petition in Neal v. United States, No. 09-1414, a new Article 120 case. The reply was filed on Tuesday. The Neal cert...
View ArticleArticle 120 argument: is this a concession?
Note the following exchange between Judge Baker and appellate government counsel CDR Paul D. Bunge during Tuesday’s Medina oral argument concerning Article 120(t)(16), starting at 19:19: JJB: How do...
View ArticleArticle 120 reform no longer in NDAA for FY 2011
The Senate’s version of the National Defense Authorization Act for Fiscal Year 2011 included a major overhaul of the new Article 120. S. 3454, § 561. The House’s original version, on the other hand,...
View ArticlePrather is out
Opinion here. CAAF reverses AFCCA and sets aside Article 120 conviction. More later.
View ArticleCAAF provides answers, raises questions in Prather
In what may be one of the most significant CAAF cases of the term, five judges agreed that Article 120 violates due process. The court split 3-2 over why. I say that it may be one of the most...
View ArticleCriminal Law Divisions to prosecutors: Maintain course and speed
Yesterday the Navy Office of the Judge Advocate General’s Criminal Law Division recommended that trial counsel continue to request that the military judge give the Benchbook instruction in Article...
View ArticlePrather digested
Prather now lives on the CAAF digest page. Of course I’m familiar with all the disclaimers that remind us that digest summaries aren’t part of the opinion and don’t reflect the view of the court, but...
View ArticleMedina holds that military judge’s instruction ignoring language of the new...
In Medina, the military judge essentially ignored the new Article 120 and gave instructions on a consent/substantial incapacity issue in accordance with the old Article 120. In today’s Medina...
View ArticlePrather amendment to Military Judges’ Benchbook
An alert reader sent us this change to the Military Judges’ Benchbook in response to CAAF’s opinion in United States v. Prather, 69 M.J. 338 (C.A.A.F. 2011).
View ArticleAFCCA upholds Assault Consummated by a Battery as LIO of Rape
AFCCA’s published opinion today in United States v. Aguilar, __ M.J. __, No. ACM 37545 (A.F. Ct. Crim. App. March 30, 2011) started off as a typical sufficiency-of-the-evidence case, but the court...
View ArticleNMCCA Opinions – 1 April 11
The NMCCA released a number of unpublished opinions this week, including the following interesting items: United States v. Lavoy, No. NMCCA 201000586, finding no material prejudice in a 1,601 day...
View ArticleMcClatchy article on Article 120
Michael Doyle and Marisa Taylor of McClatchy Newspapers have written a series of articles on the military justice system. Here’s a link to their latest, which is about the “new” Article 120. Michael...
View ArticleClik here to view.
Whidbey Island, Article 120, and Fosler: a stream of consciousness
I recently had reason to visit the legal office at Naval Air Station Whidbey Island. I spent two years as SJA at Whidbey Island, and it’s one of my favorite places in the world. The base and...
View ArticleMore McClatchy coverage of military sex offense prosecutions
McClatchy Newspapers has posted three more articles about the military’s prosecution of sexual offense cases. See here, here, and here.
View ArticleThe amazing (new) Article 120
Congress amended Article 120, UCMJ, effective 1 October 2007. This new Article 120, codified at 10 U.S.C. § 920, is really a remarkable piece of legislation. It encompasses 36 offenses, it contains a...
View ArticleMcClatchy article on Article 120 amendments
Here’s a link to a new McClatchy article on the amendments to Article 120 contained in the conference committee’s version of the National Defense Authorization Act for Fiscal Year 2012. Of course, the...
View ArticleArgument Recap: United States v. King, No. 11-0583/NA
CAAF heard oral argument in United States v. King, No. 11-0583/NA, on Monday 12 December. The case questions whether indecent language amounts to indecent conduct in violation of Article 120(k)...
View ArticleThe Revised Article 120
The National Defense Authorization Act for FY2012 (H.R. 1540) contains language that almost-completely revises Article 120, UCMJ. The bill was presented to the President for signature on December 21...
View ArticlePresident Obama has signed the DOD Authorization Act for FY 2012
As the Hill reports here, President Obama today signed the National Defense Authorization Act for Fiscal Year 2012, while issuing a signing statement objecting to detention policy provisions in the...
View ArticleThe new UCMJ amendments — an overview
The National Defense Authorization Act for Fiscal Year 2012, which President Obama signed on New Year’s Eve, includes amendments to the UCMJ. [The complete text of the UCMJ as amended is available...
View ArticleThe Article 120 amendments: is death a statutorily authorized punishment for...
Congress just removed death as an authorized punishment for the offense of rape of a child in the military as of 28 June 2012. That decision has particular resonance in light of the Supreme Court’s...
View ArticleToday’s NYT Op-Ed
Today’s NYT Op-Ed focuses on the continuing problem of sexual assault in the military. There have been some recent proposed structural changes to the UCMJ by members of Congress and it looks like more...
View ArticleIs mistake of fact as to consent a defense to a new new Article 120 charge?
That’s the interesting question addressed by this post on the TJAGLCS Crim Law Department’s 31(b)log.
View ArticleNew, New Art. 120 Guidance From TJAGS
From the folks that brought you the Art. 31(b)log, here is a 9-page primer on the new Art. 120. For anyone that has Lexis-Nexis, just login and it should be free. I think that leaves our baby blue...
View ArticleFeminist theory and Article 120
Over at 31(b)log, Jim Clark of TJAGLCS has posted this interesting commentary exploring the impact of feminist theory on the evolution of rape laws.
View ArticleHow strange can private sexual activity be before it’s an “indecent act”?
I’m not sure what adjective to use for the facts of United States v. Jagassar, No. 38228 (A.F.Ct.Crim.App. Feb. 4, 2014) (link to unpub. op.). Appellant pleaded guilty to numerous sexual offenses,...
View ArticleThe Army CCA finds that digital pictures don’t constitute indecent exposure
In a published opinion in United States v. Williams, __ M.J. __, No. 20140401 (A. Ct. Crim. App. Mar. 30, 3016) (link to slip op.), a three judge panel of the Army CCA splits 2-1 to hold that the...
View ArticleCAAF grants review of Article 120 (2006) lesser included offense issue
Yesterday CAAF granted review in this Army case: No. 18-0347/AR. Michael J. Gonzales. CCA 20130849. On consideration of the petition for grant of review of the decision of the United States Army Court...
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