Court-Martial Trial Practice Blog

NMCCA sets aside a Article 120 case for instructional error

August 19, 2010 | The Law Office of Philip D. Cave

In the United States v. Jones the facts cited by the court show a consent defense. However the defense counsel did not request an instruction on the affirmative defense and the military judge did not give one. There being no evidence of an affirmative waiver the findings and sentence were set aside.

A military judge has a sua sponte duty to instruct the members on an affirmative defense if it is reasonably raised by the evidence. United States v. McDonald, 57 M.J. 18, 20
(C.A.A.F. 2002). Failure by the defense counsel to request the instruction does not waive the error. United States v. Brown, 43 M.J. 187, 189 (C.A.A.F. 1995)(citing United States v. Taylor, 26 M.J. 127, 129 (C.M.A. 1988). Failure by the military judge to instruct on an affirmative defense presents a constitutional error which must be tested for prejudice. For such an error to be deemed harmless beyond a reasonable doubt, the Government must prove that the members would have reached the same verdict absent the error. Neder v. United States, 527 U.S. 1, 19 (1999).

We agree with the appellant that the affirmative defense of consent was reasonably raised by the appellant’s sworn testimony. As noted above, the appellant posited a scenario in which the purported victim, Cpl B, was an unambiguously willing participant in the sexual contact alleged, ostensibly even the instigator and aggressor.

Up periscope

August 19, 2010 | The Law Office of Philip D. Cave

WOKV.com reports:

The NASA astronaut who made international headlines after attacking a romantic rival with pepper spray at the Orlando International Airport in 2007 spent Thursday in a military courtroom at Naval Air Station Jacksonville.

The government is asking a Navy review board to recommend discharging Captain Lisa Nowak and reduce her rank and pay grade.

LTC Lakin

August 18, 2010 | The Law Office of Philip D. Cave

World News Daily reports:

A reported threat by a senior Army officer to "Taser" another officer on trial for challenging Barack Obama’s eligibility to be president could be a serious "command influence" issue that could taint the case, according to an expert.

Here is the Greeley Gazette article referred to:

Up periscope

August 16, 2010 | The Law Office of Philip D. Cave

Huffington Post has a piece about MEJA.

In the perpetual debate over legal accountability of, and prosecution if necessary, of private military and security contractors one often sees the arguments reduced to two simplistic arguments.

PMSC opponents argue the contractors argue in a legal vacuum and with utter impunity. This is, of course, as anyone who has even done the most cursory reading on the subject knows, is utter nonsense. . . .

LTC Lakin 6

August 14, 2010 | The Law Office of Philip D. Cave

TPMMuckracker his this update, on the alleged “threats” from LTC Brodsky.

Late Update: Margaret Hemenway of the American Patriot Foundation told TPM that the account of Brodsky’s comment and Lakin’s response came from Lakin himself. “It’s bizarre,” she added of Brodsky’s “threat,” and “looks very bad.” Hemenway continued that they’re “going to have to wait and see how they deal with this,” and suggested that the APF is anticipating some kind of disciplinary action against Brodsky. “What was he thinking?” she wondered repeatedly.

Late, Late Update Army Public Affairs Officer LTC Robert Manning told TPM that he was “there at the arraignment and I did not hear” LTC Brodsky’s alleged comments. “I was there at the proceedings the entire time,” he said, adding that the Army is “committed to ensuring that Lt. Col. Lakin receives fair treatment and due process.”

LTC Lakin 5

August 14, 2010 | The Law Office of Philip D. Cave

World News Daily has a piece on LTC Lakin and his radio inteview with G. Gordon Liddy. Here are a couple of interesting points from the article.

“We are today (12 August 2010) officially requesting that discovery,” Jensen said. “If the government refuses to give it to us, then we will, a week from today, file a motion to compel discovery.

“I can’t think of a single reason why the judge would take the government’s position,” he said.

Up periscope

August 14, 2010 | The Law Office of Philip D. Cave

Military.com reports:

The commanding officer of the Little Creek-based amphibious dock landing ship Gunston Hall was relieved of command Thursday after an investigation into allegations of sexual harassment, simple assault and conduct unbecoming an officer.

Navy Times adds additional information:

LTC Lakin

August 13, 2010 | The Law Office of Philip D. Cave

Note to file. Don’t spend time gossiping with Dwight while burglars are having their way in your house. It’s not helpful or conducive to a good day and it interferes with blogging. Second note to file: send thank you to ADT (a la USAA) for an efficient alarm system, and note of thanks and donation to the APD Patrolman’s Benefit Association.

Anyway, back to LTC Lakin.

AMPAT-100804-CNN-Full-v01 I told Dwight that a minor nit was LTC Lakin and his counsels’ failure to stand when first addressed by the military judge. I have the client stand on the “are you . . .” in all cases and its de rigueur in Navy and Marine Corps cases. It’s a minor sign of respect to the court. Anyway, at the time it was just a bit of post-Lakin gossip for Dwight. But then I chanced to look at the photograph on APF along with the fund-raising plea. LTC Lakin is probably lucky the SGM wasn’t around with a Taser complaining about a poor example to the enlisted personnel. I know, I know, it’s a nit. But I did not see a “No cover area” sign around outside the (now temporarily housed in a warehouse) court-room. BTW Fort Meade courtroom is a lot more professional looking and much more space for a gallery.