New CAAF cases.

Two new CAAF cases have been put up on the website.

United States v. Stephens, __ M.J. ___ (C.A.A.F. Mar. 12, 2009). The prosecution called the victims father to talk about the effect the trial had on her.

Appellant, citing United States v. Mobley, 31 M.J. 273 (C.M.A. 1990), United States v. Carr, 25 M.J. 637 (A.C.M.R. 1987), and Burns v. Gammon, 260 F.3d 892 (8th Cir. 2001), argues that the father’s testimony was an impermissible comment on Appellant’s right to plead not guilty, confront the witnesses against him, and put the Government to its proof, and hence constitutional error.

The military judge did not abuse her discretion. The evidence was relevant victim impact evidence and properly admitted under R.C.M. 1001(b)(4).

CAAF cautioned,

We caution trial counsel introducing aggravation evidence under R.C.M. 1001(b)(4) to use care in eliciting testimony that may cross the line into impermissible comment on an accused’s
invocation of his constitutional rights. While we find no abuse of discretion here, it is not difficult, particularly in cases involving sexual abuse, to envision such a case.

I doubt that prosecutors will heed the implicit warning.

United States v. Dean, __ M.J. ____ ( C.A.A.F. Mar. 12, 2009). Dean is a case of wrongful withdrawal from a pretrial agreement by a convening authority. After the PTA was signed, the prosecution wanted to modify the stipulation of fact to include additional misconduct that had just come to light. The defense said no.

The case went contested, appellant was convicted of some of the charges and was sentenced in excess of what the PTA would have been.

Appellant argued that when he signed the PTAO, when he signed the Stipulation of Fact that went with the PTAO, when he requested MJA, and when he withdrew a substantial list of witnesses, he had "begun" performance in reliance on the PTA. The government argued that there is no detrimental reliance until the accused actually enters his plea on the record. Wrong! says CAAF. The government also argued that the failure to later amend the signed stipulation of fact was a material breach. Wrong again. The accused complied with the requirement to describe the facts and circumstances surrounding the offenses.