Fosler and it’s trailers

I have posted already about NMCCA’s apparent handling of Fosler cases that are currently before them for decision – here, here, here, and here.

It appears that CAAF is now starting to deal with the trailers they have on their docket, by sending some of them back.  Dwight “My Liege” Sullivan notes on CAAFLog, the initial event.  What isn’t clear from the remands is whether or not the cases are NG pleas w/, NG pleas w/o, or GP please w/ or w/o.  The CAAF website doesn’t have the 21/9 daily journal updated yet on the Fosler cases, although as DMLS points out, they appear to be working on the Blazier trailers and have sent back a number of urinalysis cases for HBRD analysis in light of Blazier and Sweeney.

I’m surprised that NMCCA has set aside several GP cases, and on reflection I’m surprised they set aside in Walton, a fully contested NG case.  Initially it seems fair to say that the strongest argument for affirming in all GP cases is that the client didn’t make a motion and successfully got through providency on all the elements.  So it seems odd that NMCCA would start to make a distinction based on what appears to be the offense itself.  It would seem an all or nothing approach to GP cases is the best answer in light of Fosler and the Supreme Court jurisprudence on post-trial motions to dismiss for failure to state an offense.  While it is true that a motion to dismiss for failure to state an offense is non-waivable, why should an implied waiver theory (as NMCCA is doing) not be the answer in all GP cases.  If there was confusion on the part of the accused in the providency inquiry, then it would be reversed on an inadequate providency grounds should it not?

I can see a better argument in straight NG cases for looking at the offense charged and sought to be proved.  But that’s where I’m a little surprised with Walton and similar cases.  Walton involved an alleged rape, giving alcohol to minors, fraternization, and other acts toward junior Marines.  He was not an instructor at the school, but he was on staff and they were students.  So it would seem clear that actions under those circumstances could equate to a GoD problem.  That would be distinguishable (under a GoD theory) from a person who threatens to assault a civilian in a bar miles away from a military base.  Under a SD theory the threat might still be difficult if the person was not in uniform, was not identified at the time as a Marine, etc.  Also in a NG case isn’t that the prime situation where the defense is sufficiently on notice of the GoD/SD element(s)?

If nothing else it seems the NMCCA approach may be predictive of how NMCCA may decide the returned trailers.

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