There are several new published and unpublished opinions on AFCCA’s website today; including a Lawrence v. Texas issue raised, the continuing effort of the prosecution in punishing an accused for exercising his constitutional rights to a trial, an issue of vindictive prosecution.
United States v. Harvey, __ M.J. ___ (A. F. Ct. Crim. App. 2009). This is a consensual sodomy case implicating Lawrence v. Texas, 539 U.S. 558 (2003).
This case was previously discussed by CAAFLog. What’s interesting is that in oral argument the government seemed to concede no additional element of prejudice under Article 133, UCMJ, but then tried to retract that concession.
In its opinion AFCCA decides that Marcum is the correct analysis to follow and applies to any charge under the UCMJ, including Article 133, UCMJ.
AFCCA then analyzed Harvey under United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004). The court agreed that Harvey’s conduct was consensual and arguably protected. The court then went on to decide if Article 133, UCMJ, which proscribes a higher standard of honorable behavior for officers, could lead to an officer’s conviction for consensual sodomy. The court viewed the facts, as applied, constituted an offense: appellant was a representative of the U.S. abroad, the conduct was with a Turkish civilian national, appellant had previously been confronted about his behavior, and rumors abounded on and off base about his behavior. Additionally the court found in was not error for the judge to fail to instruct the members on the Marcum factors. In this case the defense specifically requested the judge not instruct on the factors.
On a recusal of the military judge request, the court found that the judge was doing what he was required to do: there was nothing in the judge’s comments that evinced actual or implied bias.