Articles Tagged with rodriguez

United States v. Foisy, __ M.J. __, No. NMCCA 201000026 (N-M. Ct. Crim. App. July 20, 2010).  (Thanks to an early posting of the decision by CAAFLog.)

Rodriguez and Gilbride deal with Mil. R. Evid. 304(h)(2) rule of completeness.  Mil. R. Evid. 304(h)(2) is a longstanding rule of completeness pertaining to confessions introduced against an accused.  See, United States v. Rodriguez, 56 M.J. 336, 341-42 (C.A.A.F. 2002), the rule applies to oral as well as written statements.  United States v. Gilbride, 56 M.J. 425 (C.A.A.F. 2002).  This is a different rule than Mil. R. Evid. 106.

In deciding the military judge erred in his application of Mil. R. Evid. 304(h)(2), NMCCA identified six non-exclusive factors to consider on the issue.

In United States v. Rodriguez, 67 M.J. 156 (C.A.A.F. 2009), cert. denied, 130 S. Ct. 459 (2009) the court changed years of practice when it came to late filings of petitions for review with CAAF.  In Rodriguez the court held that:

In light of Bowles v. Russell, 127 S. Ct. 2360 (2007), we conclude that the congressionally-created statutory period within which an accused may file a petition for grant of review is jurisdictional [and may not be waived or extended regardless of cause].

The effect was to deny an opportunity for an appellatant to petition on meritorious issues or have access to the United States Supreme Court.  Prior to Rodriguez it was not uncommon for appellate counsel and appellants to miss the CAAF petition filing deadline, sometimes by just a few days.  The reasons for the missed filing generally came down to administrative error within the appellate defense divisions.  For various reasons filing deadlines weren’t being tracked accurately.   It’s my understanding that the divisions have taken measures to correct the problems.  However, there were a series of cases post Rodriguez where the appellant was denied access to CAAF based on Rodriguez.   While unfortunate, for those that had no seemingly meritorious issues to petition on there was likely no prejudice.  But what about those cases where the appellant had a good issue (regardless of whether or not it was a winner)?

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