NMCCA has decided a number of cases

Three of which have discussion.

United States v. Hohman.  It’s a Marine case along the lines of Hutchins, et. al.

The Government alleges the military judge erred in abating the court-martial proceedings until the appellee’s previously detailed military defense counsel is returned to the defense team.  Subsequent to
the Government’s filing of the interlocutory appeal, the appellee filed a Motion to Dismiss for Lack of Jurisdiction.  On 1 December 2010, we heard oral argument on the Motion to Dismiss and the interlocutory appeal.  After considering the record of trial and the parties’ pleadings, we deny the appellee’s motion to dismiss and conclude that good cause exists to sever the attorney-client relationship.  The Government’s appeal is granted.

Here’s an interesting factual nuance:

Following the trial judge’s imposition of abatement, the Government has advanced an option of compliance involving Capt M accepting Active Duty Operational Support (ADOS) orders and voluntarily returning to active duty to represent the appellee.  Capt M has stated, however, that he will not voluntarily accept such orders.  Alternatively, Capt M proposes that the Government pay him an hourly rate to represent the appellee as civilian counsel.  The Government has essentially refused this offer, and
the military judge has abated the proceedings.

United States v. Everhart.

The appellant has submitted four assignments of error: 
(1) the statutory scheme of Article 120, UCMJ, violates due process of law by placing the burden on the accused to disprove an element of the Government’s case; (2) the military judge erred by failing to instruct the members on the proper application of the Article 120, UCMJ, affirmative defenses, violating his right to due process; (3) the military judge erred by denying the defense’s objection to the convening authority’s removal of all women from the convening order without hearing any evidence from the Government that no impropriety occurred when selecting the court-martial members; and (4) the evidence is factually insufficient to sustain a conviction for aggravated sexual assault.  We conclude that the findings and the sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant was committed.

United States v. Stewart.

The appellant raises seven errors on appeal: (1) the military judge abused his discretion by failing to require the Government to elect its theory of criminal liability; (2) the convening authority systematically excluded potential members; (3) the military judge abused his discretion by denying a defense challenge for cause; (4) Article 120(c)(2), UCMJ, is facially unconstitutional because it shifts the burden to the appellant to disprove an element of the offense; (5) the statute as applied to the appellant was unconstitutional because it required the appellant to prove an affirmative defense before the Government’s case-in-chief; (6) the military judge’s finding that the appellant established an affirmative defense by a preponderance of the evidence precluded a finding that the Government disproved the defense beyond a reasonable doubt; and, (7) the evidence supporting his conviction for aggravated sexual assault is factually insufficient.  We have carefully examined the record of trial and the pleadings of the parties.  We conclude that the findings and the sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant occurred.

Interesting point on the members selection issue:  the CA apparently admitted that he “mistakenly” assumed that member senior to the O-3 accused had to be in a higher paygrade, and so excluded O-3’s senior to the accused in appointing members.  That was considered OK, notwithstanding there had to be an informed SJA in the process somewhere.  The court made short shrift of an argument that the CA systematically excluded naval officers from panel duty.

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