Articles Posted in New Cases

NMCCA has decided United States v. Walton.  In that case they dismissed an adultery and indecent language conviction based on Fosler, without discussion of the issue.  I sort of assume they feel comfortable that Lansford,  Gibson (which I posted here) and Leubecker (which I posted here) sufficiently explain NMCCA’s thinking on how to deal with Fosler.

However, I would note that Walton was a fully contested rape case which resulted in a NG on the rape.  I was the defense counsel (and no I didn’t file a motion).  We were too busy with the false rape allegation.  (The “rape victim” called her friend after the sex, appeared to say she liked it, “and would do it again.”  When she and accused were investigated for alcohol and fraternization the “victim” admitted consensual sex, or words to that effect.  After she was advised of a potential summary court-martial and shortly after the erroneous (IMHO) sexual assault training, the “victim” claimed rape.)

Anyway, the point about NMCCA’s decision is that it was a contested case, not a guilty plea case like Lansford, Gibson,and Leubecker, and the issue wasn’t raised at trial.  It appears that NMCCA will rely on the same rationale as they have expounded for guilty plea cases?  Keep in mind that this was a clear fraternization case, albeit beginning as a false rape allegation.

CAAF has decided three cases, Blazier of course being one of them.  I was the trial defense counsel in the case so no comment from me on the case so far.  Here is the brief for petitioner in Bullcoming v. New Mexico.  Professor Friedman has posted this at his excellent confrontationblog site.  I had anticipated CAAF might await a decision in Bullcoming.  But, in discussions with DMLHS last night it appeared that Bullcoming wouldn’t likely be argued until early 2011, and there are a potential lot of military cases building up.

United States v. Staton decided this issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN ADMITTING EVIDENCE THAT APPELLANT MAY HAVE ATTEMPTED TO KILL OR INJURE THE ORIGINAL TRIAL COUNSEL.

There are several decisions:

United States v. Sanchez is back with the same result.  There was a time when the SJAR used to be a long and complete and thorough briefing sheet to the commander acting post-trial.  Because of a very very few lost cases on post-trial delay and the amount of work required the SJAR has developed into a “I read the case, approve it.”  Thus the “advice” has been moved behind closed doors.  Can anyone imagine that when a CO wants to talk about granting clemency on a case she doesn’t call in the SJA for advice which, without a written document, is unknown.  Yes, we have gotten here because of all of the litigation over the years because of inaccurate or erroneous advice.  So, rather than enforce giving “balanced” (see Sanchez), accurate, and correct advice we now have a situation where the CO gets as much unbalanced, potentially biased, and potentially wrong information as the SJA is able to give.  What a cure.  But the defense does have a role to play in this.

It seems to me that trial defense counsel should go back to the earlier SJAR forms and create a macro document similar to that old SJAR.  A tasker for the chief defense counsels at their next annual meeting.  Have the paralegal go through the ROT and other documents and basically fill in the data.  The CO isn’t going to read through the ROT and the SJA can’t be relied upon to tell her the good stuff.  For that matter, why not start the document prior to trial.  That way you can prepare for trial better.  You are already working on the I-Love-Me book, and the paralegal is often working on the index, so why not go a little further.  The AF has a good start with their PDS that’s prepared for court.

Navy.

1.  United States v. Curry.  This is a BAH case. 

The Government proceeded on a theory of a fraudulent marriage as a basis to commit larceny by trick.
The court held oral argument in this case and specified two additional issues to the parties.2 Additional pleadings were later filed.  After carefully considering the record of trial and the pleadings of the parties, we decide this case based solely on the assigned error and conclude that the evidence was factually insufficient to sustain the finding of guilt as to the charge of larceny, either on the proffered theory of larceny by trick or under a possible theory of wrongful withholding.

United States v. Brown is a good reminder of waiver of motions in pretrial agreements.

The typical waiver is that the accused will “waive all waivable motions.”  This seems something of an oxymoron.  The provision is consistent with the idea that all nonjurisdictional motions are waived on a guilty plea unless there is a conditional waiver.  The court cites United States v. Bradley, 68 M.J. 279  (C.A.A.F. 2010)

This is an area potentially ripe for IAC in pretrial negotiations and advice.  In this case,

The Air Force Court of Criminal Appeals has issued an opinion in United States v. Hull.

The issues on appeal are: whether the staff judge advocate (SJA) erred by advising the convening authority (CA), pursuant to Rule for Courts-Martial (R.C.M.) 1106, that no new trial was warranted and whether the CA erred by failing to order a new trial despite the SJA’s acknowledgement that the appellant had presented new evidence that fell within the parameters of R.C.M. 1210. Further, the appellant filed a petition for a new trial pursuant to Article 73, UCMJ, 10 U.S.C. § 873.

AFCCA denied relief on the merits of the appeal and denied a new trial.  AFCCA reasoned that even if the information was newly discovered (AFCCA was not certain it could not have been obtained during pretrial preparations), the evidence would not,

For various reasons the issue of homosexuality and DADT has been in the news for a while.  The results of the various surveys to servicemembers and familys are still pending.

Tomorrow, NMCCA will hear oral argument in United States v. Hayes:

I. WHETHER THE MILITARY JUDGE’S COMMENTS ON THE RECORD AND DURING THE “BRIDGING THE GAP” DISCUSSIONS WITH COUNSEL REFLECT AN ACTUAL BIAS AGAINST THE APPELLANT’S SEXUAL ORIENTATION, RESULTING IN THE MILITARY JUDGE’S DISQUALIFICATION FROM PRESIDING OVER APPELLANT’S COURT-MARTIAL?

NMCCA has released a number of decisions.  Several have providency issues and issues not raised by appellate counsel.

United States v. Messias.  The court set-aside a finding of guilty to because of an inadequate providence inquiry.  No sentence relief granted.

While the providence inquiry establishes facts sufficient to demonstrate that the appellant drove on base and that he believed the driving to be wrongful, there are no facts developed which establish either the invalidity of the appellant’s license, if any, or in the alternative, his failure to have a valid license in his possession. We cannot infer either eventuality from this record. We are left with a substantial basis in fact to question this plea and conclude the military judge abused his discretion in accepting this plea on these facts.

The Coast Guard has certified the following issues to CAAF.

No. 10-6010/CG.  U. S., Appellant v. ANDREW L. DALY, Appellee.  CCA 001-62-10. Notice is hereby given that a certificate for review of the decision of the United States Coast Guard Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:

WHETHER THE COAST GUARD COURT OF CRIMINAL APPEALS ERRED IN APPLYIING THE STANDARD OF FAIR NOTICE, AS OPPOSED TO MISTAKE OF LAW, IN AFFIRMING THE MILITARY JUDGE’S FINDING THAT, UNDER COAST GUARD REGULATIONS, THE ACCUSED WOULD NOT HAVE KNOWN HIS CONDUCT WAS CRIMINAL AND THEREFORE HE COULD NOT BE PUNISHED UNDE ARTICLE 134, UCMJ.

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