But it wasn’t enough

The CGCCA has issued an opinion in United States v. Thompson.

The case is a reminder that what you do or don’t do at trial has consequences on appeal.  OK, that’s a rather obvious meaningless statement – fine.  But I’m thinking of a number of areas (as highlighted in Thompson) where we make a motion, the judge offers or “fashions” relief, and then the judge says to the defense, “is that good enough, etc?”

If you say, “Yes judge, your remedy is fine,” it becomes rather hard to then complain on appeal, as did Thompson.  Thompson’s issue related to UCI.

[The military judge] ordered remedial action.  Appellant did not object to the proposed remedy as inadequate at the time or after it was implemented, even though he did “renew” the motion at trial based on a wholly separate later incident.

Huuuuuuum, I smell waiver coming.

Appellant now asserts that the remedy was inadequate.

Not necessarily waiver, but sufficient along with other evidence to find the remedy was appropriate, the military judge did not abuse her discretion, and Thompson doesn’t get any additional relief.

There’s also a caution for – both sides actually.  There’s an implication that the defense brought the problem on themselves by the way they interacted with some of the people involved.  See how you interpret what the court says beginning at Slip op. 5.  Witnesses allegedly being ““shanghaied” in to a “trick defense[.]”  The court concludes that section with, “Any reluctance to testify was based on the witnesses’ perceptions of the defense’s actions. There was no unlawful command influence by the witnesses’ commanding officer.”

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