Air Force appeals court dismisses charges because of lack of evidence

Any experienced military appellate lawyer will tell you that the chances of winning on appeal can be low, depending on the issues raised in the appellate briefs. The hardest issue to have a court of criminal appeals dismiss the charges because they did not find there was enough evidence to sustain and conviction beyond reasonable doubt.

That is what happened for us and our appellate client in a just recently decision by the Air Force Court of Criminal Appeals.

The Appellant was charged with possession and distribution of CP (contraband images). The prosecution’s first attempt to get a conviction failed when the military judge abated the trial. The military judge did that because there was a lot of critical evidence that had been lost or destroyed by the police. The prosecution appealed that decision and the Air Force Court granted the prosecution’s appeal. So, the trial recommenced. After a contested trial the client was convicted.

Now on appeal, we took over representation of the client. We prepared a brief that sought to find that the AFCCA had made a mistake in granting the prosecution appeal. And we challenged the factual sufficiency of the evidence. Factual sufficiency is the military legal term the appellate court judge’s decision that there wasn’t enough credible evidence to find guilt. Because of that decision, all our other legal issues did not have to be dealt with.

Because the charges were dismissed with prejudice, the client cannot be retried on the same charges, the prosecution can’t appeal the decision of the CCA, there is no conviction, and the client does not have to register as a sex offender. He may also be entitled to some backpay.

The Air Force is deciding whether he should remain on active duty for another 18 months until he reaches 20-years of service and can retire or administratively separate him.


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