Articles Tagged with nmcca

NMCCA has decided United States v. Owens.

The appellant asserts that the attorney-client relationship with his detailed trial defense counsel was terminated without good cause, leaving the appellant legally and factually without post-trial representation.  The basis for the appellant’s claim is that substitute counsel failed to establish an attorney-client relationship with the appellant prior to receipt of the staff judge advocate’s recommendation (SJAR).

The court makes clear in footnote 3, that:

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. Sagona, sentenced at court-martial on 8 May 2008, appeal decided 30 September 2010.

The issue was IAC of trial defense counsel who allegedly failed to investigate and advise on a potential defense of immunity.  R.C.M. 704 covers the issues of immunity, tempered by case law.  Basically only the GCMCA can grant immunity, but . . . .  Cooke v. Orser, 12 M.J. 335 (C.M.A, 1982), is one of the more well known cases about immunity outside the R.C.M. and UCMJ requirements.

The court in Sagona had ordered a Dubay hearing.  See United States v. DuBay, 37 C.M.R. 411 (C.M.A. 1986) and United States v. Ginn, 47 M.J. 236 (C.M.A. 1986).

I posted yesterday on a new Army case dealing with instructions on an affirmative defense in a court-martial under the UCMJ.

Today I’m posting on United States v. Ramon, an unpublished opinion from the NMCCA dated 28 September 2010.

In his sole assignment of error, the appellant alleges that the military judges erred in failing to instruct the members as to mistake of fact as to consent.

United States v. Stanley.

The appellant raised eight errors through counsel and an additional six in accordance with United States v. Grostefon.

One assignment of error warrants discussion, but no relief.   Specifically, appellant alleges that the military judge erred by failing to properly instruct the panel regarding appellant’s right during mutual combat to exercise self-defense when the force used against him escalated.  Today we find that any error by the military judge was harmless beyond a reasonable doubt and affirm the findings and sentence.

Couple of new NMCCA decisions on some court-martial appeals.

United States v. Soucie.  In this case NMCCA decides that the military judge failed to adequately inquire into  a duress defense on providency.

The accused raised six errors and the NMCCA specified an additional error.  The government agreed that a charge under Article 123a should be set aside because it failed to state an offense.  This left a sole specification of impersonation.

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?

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.

Navy Times reports:

A former Navy officer who was serving time for hiring someone to kill his wife was killed in a Kansas military prison a month before he was supposed to be released.

Officials at Fort Leavenworth say 54-year-old former Navy Lt. Cmdr. Michael Fricke was beaten with a baseball bat by another inmate on July 24. He died Thursday after his family authorized taking him off life support.

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