Court-Martial Trial Practice Blog
I posted a couple of weeks ago almost, that NMCCA’s cases in which the Fosler issue was addressed. We have another case which appears consistent with NMCCA’s approach in those prior cases.
In United States v. Leubecker, the court took up a Fosler issue again. The two challenged specifications related to breaking restriction and communicating a threat. NMCCA ruled against appellant.
1. It was a guilty plea, with a PTA.
2. The accused did not object (although there was no express waiver of the issue).
3. The court was at pains to distance themselves from Fosler which is an adultery charge.
4. In addressing the breach of restriction the NMCCA emphasized the years of history and its peculiar military related offense.
NMCCA seems to be making the analysis hinge on the nature of the offense charged rather than the Article itself. Some charges are clearly related to good order and discipline. It seems to me that part of the analysis is surplusage – it was a guilty plea case. In a guilty plea case what’s the prejudice?