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ACCA court-martial appeal decisions

December 7, 2009 | The Law Office of Philip D. Cave

United States v. Story. Here the issue is two-fold: what is the response when the members want to call a witness, and what is permissible on appeal to demonstrate prejudice. ACCA found error in the military judge denying the members an opportunity to call a witness. On appeal, ACCA found that documents submitted by appellate government and appellate defense could not be considered. This seems odd, because the defense is trying to show prejudice from the error and the government is trying to show lack of prejudice.

When the members returned, immediately after calling the court to order and accounting for the parties, the following colloquy ensued:

MJ: Members, the bailiff indicated that you had a question? Colonel Meyer is shaking her head.

NMCCA has 6 new decisions – 1 reversed for IAC

November 17, 2009 | The Law Office of Philip D. Cave

NMCCA has issued six new decisions, of which four are merits.

United States v. Maharrey, post-trial delay case.

United States v. Thornton. Appellant raises ineffective assistance of counsel (IAC) and sufficiency of the evidence. The findings and sentence are set-aside based on the IAC. The IAC relates to several issues: failure to properly advise on forum; failure to prepare appellant to testify; failure to cross-examine some witnesses. A DuBay (United States v. DuBay, 37 C.M.R. 411 (1986)) hearing was ordered. The military judge found several issues of IAC. The DuBay judge did not agree with all the allegations of IAC.

ACCA decision in Kloch

November 12, 2009 | The Law Office of Philip D. Cave

ACCA has decided United States v. Kloch.

The accused wanted to tell the military judge in his unsworn that several of his co-accused’s had received 15 days confinement at summary court-martial, etc. The MJ would not allow the statement. ACCA found error, but that it was non-prejudicial.

New CGCCA opinion

November 12, 2009 | The Law Office of Philip D. Cave

The CGCCA has issued a decision in the court-martial: United States v. Montuoro. A short sweet reminder of sentence comparison issues when there are co-accused’s. Sentence comparison among co-accused’s is a different issue than sentence appropriateness.

NMCCA issues 15 decisions today

November 6, 2009 | The Law Office of Philip D. Cave

All were submitted on their merits. All except one was a straight legal affirmance.

In United States v. Carney, the court themselves found two errors that needed to be corrected. The convening authority failed to suspend the bad conduct discharge as agreed in a pretrial agreement, and a multiplicity issue was reviewed for plain error and granted. The sentence as adjudged was affirmed.

NMCCA issues 13 decisions today

November 4, 2009 | The Law Office of Philip D. Cave

All are straight legal denials on the merits.

The other new NMCCA cases.

October 26, 2009 | The Law Office of Philip D. Cave

Jansen. A sentence comparison case among co-accused’s. The case is of note to trial practitioners and SJA’s for it’s “discussion” of what is or isn’t a “closely related” case, and whether sentence disparity should be addressed with the CA post-trial.

Principi. A CP case where the prosecution charged for contingencies of proof, the contingency wasn’t resolved at trial, but the sentence was a decent one so no real prejudice.

Redeaux. I think this case should be looked at as a pleadings specificity and notice case, and IAC of TC/SJA/Art. 32 IO. Poor pleading practice lead to the accused getting a benefit, that he probably wasn’t entitled to. The MJ raised issues with the pleadings. The TC folded and apparently didn’t make an argument that the pleadings, while inartful, were sufficient. Because the TC folded the accused got the benefit of renegotiating his PTA for a lower sentence cap.

NMCCA decision – IAC question?

October 26, 2009 | The Law Office of Philip D. Cave

Here is the footnote that should be of concern to all defense counsel, from United States v. Regaladozambrano, just decided.

While the Court has declined to brand Capt [O’s] post-trial legal representation of the appellant as deficient, that restraint is exercised only due to the lack of any evidence of prejudice in the record before us.

What’s the court’s concern?

NMCCA released nine new decisions today.

October 26, 2009 | The Law Office of Philip D. Cave

Five of the new cases are post-trial delay issues. More on the others later.

Post-trial delay prejudice has to be shown.

August 17, 2009 | The Law Office of Philip D. Cave

CAAF has released an opinion in United States v. Bush, __ M.J. ___ (C.A.A.F. 2009). That means, according to CAAFLog, two more to go before of all of the current pending decisions have been released. Judge Erdmann writes the opinion; Judge Ryan writes a “concur in the judgment” opinion which Judge Stuckey is in agreement with.

This is a post-trial speedy review case. The NMCCA decision was affirmed which denied relief. Appellant had submitted a general claim of prejudice without any supporting documents. The court also decided that the NMCCA erred in placing the burden on appellant to produce evidence of prejudice, but the error of burden shifting was harmless beyond reasonable doubt. The court specifically avoided creating a presumption of prejudice for future cases.

In her concurring opinion Judge Ryan said she wants to revisit the post-trial delay jurisprudence, and reject any decision-making based on a public perception of injustice theory. She is open to the possibility of relief where there is actual prejudice.