nmcca Tag Archives — Page 2 of 3 — Court-Martial Trial Practice Blog

Pending NMCCA argument

September 9, 2010 | The Law Office of Philip D. Cave

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?

NMCCA sets aside a Article 120 case for instructional error

August 19, 2010 | The Law Office of Philip D. Cave

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.

Fricke dead, case still good law

July 31, 2010 | The Law Office of Philip D. Cave

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.

NMCCA sets aside a rape conviction

July 6, 2010 | The Law Office of Philip D. Cave

United States v. Ruiz should sound familiar to most defense counsel – the basic facts that is. An adultery case becomes a rape allegation.

In particular I recommend:

Reporting the Alleged Rape
On the night of the alleged rape, after returning to the barracks, AN P did not report the rape or tell anyone what happened. Id. at 548. Seaman (SN) M testified, contrary to AN P’s testimony, that the next day, a smiling AN P pulled him aside, told him “we did it,” and explained that she and the
appellant had feelings for each other. Id. at 1146. In the next few days, AN P discovered that rumors were spreading about her being in a hotel room with the appellant. Id. at 552, 570, 592. SN C testified that he had previously counseled AN P when she told him she “liked” the appellant, a married man. Id. at 551, 676, 688. When he confronted her with the new rumors and she explained her version of events, he reported it to the command. Id. at 683. AN P testified that she would not report it because she was afraid she would get into trouble or be kicked out of the Navy for being in a hotel room with a married man. Id. at 552-55, 572, 683. AN P testified that about a week after the alleged rape, upon learning she would not get in trouble as long as she was not “cooperating” with the appellant, she reported the incident, when confronted by a SAVI advocate, a chief, and a member of law enforcement. Id. at 572. The manner in which the rape was reported raises further doubt as to why AN P made the accusation.

Hutchins a little more

June 15, 2010 | The Law Office of Philip D. Cave

Navy Times reports:

Photo: AP/Navy Times

A military judge has allowed a Marine sergeant convicted of murder in one of the biggest war crimes cases to emerge from the Iraq war to walk free, nearly two months after a military appeals court ruled he had an unfair trial. . . . Hutchins had been serving an 11-year sentence. The others in his squad served less than 18 months.

Here is a link to the en banc United States v. Hutchins at NMCCA.

Here is CAAF’s journal entry for the certification for 7 June 2010.

No. 10-5003/MC. U.S., Appellant v. Lawrence G. HUTCHINS, Appellee. CCA 200800393.

Notice is hereby given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN FINDING, INTER ALIA, THAT THE MILITARY JUDGE SEVERED THE ATTORNEY-CLIENT RELATIONSHIP WITH CAPTAIN BASS?

WHETHER UNDER R.C.M. 505(d)(2)(B), THE NAVY-MARINE CORPS COURT INCORRECTLY FOUND NO “GOOD CAUSE” ON THE RECORD FOR THE REPLACEMENT OF APPELLANT’S SECOND DETAILED DEFENSE COUNSEL WITH ANOTHER COUNSEL?

WHETHER THE LOWER COURT APPLIED THE WRONG STANDARD AND ERRONEOUSLY PRESUMED, WITHOUT ASSESSING, PREJUDICE AND SET ASIDE THE FINDINGS AND SENTENCE, WHERE APPELLANT’S STATUTORY RIGHTS, AND CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, WERE SATISFIED THROUGHOUT TRIAL?

Appellant will file a brief in accordance with Rule 24 in support of the certified issues on or before the July 7, 2010. Appellee will file an answer no later than 30 days after the filing of Appellant’s brief. A reply to Appellee’s answer may be filed by the Appellant no later than 10 days after the filing of Appellee’s answer.

Dwight Sullivan says:

CCA opinions, CAAF has held, are inchoate and need not be given effect for 30 days as the government decides whether to seek reconsideration and the Judge Advocate General decides whether to certify the case to CAAF. But CAAF has also held that when a CCA rules to free the accused, that decision will be given effect in 30 days even if the Judge Advocate General does certify the case. So in the case of a confined servicemember who would be freed as the result of the CCA’s opinion, the government must either release him or treat him as a pretrial detainee, thus providing the right to an IRO hearing. See generally United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997).

In Miller the AFTJAG certification included the following issues:

II. WHETHER OPINIONS OF THE AIR FORCE COURT OF CRIMINAL APPEALS ARE SELF-EXECUTING.

III. WHETHER, PRIOR TO THE EXPIRATION OF THE TIME PERIOD DURING WHICH RECONSIDERATION CAN BE REQUESTED OR CERTIFICATION BY THE JUDGE ADVOCATE GENERAL SOUGHT, AN AIR FORCE COURT OF CRIMINAL APPEALS OPINION IS “FINAL” OR REMAINS “INCHOATE.”

IV. WHETHER ARMY OFFICIALS PREMATURELY SOUGHT TO RELEASE APPELLEE FROM THE UNITED STATES DISCIPLINARY BARRACKS BASED UPON UNOFFICIAL NOTIFICATION BY DEFENSE COUNSEL OF AN INCHOATE, NON-SELF-EXECUTING OPINION OF THE AIR FORCE COURT OF CRIMINAL APPEALS WITH NO DIRECTION FROM A CONVENING AUTHORITY AS REQUIRED BY ARTICLE 66(e), UCMJ.

Miller held that:

The decisions of this Court and the court below are “not self-executing.” United States v. Kraffa, 11 M.J. 453, 455 (CMA 1981)(holding that “[a] decision of the Court of Military Review, ² however, is not self-executing. The court issues no mandate, but its decision is forwarded to the convening authority for further action.”); United States v. Tanner, 3 M.J. 924, 926 (ACMR 1977) (holding that “neither the decisions nor the opinions of appellate courts, however, are self-executing; cases must be returned to those lower levels where officials and parties can be ordered to implement the court’s judgment”). The Judicial Branch is not an executive arm but depends on the Judge Advocate General and lower officials to execute its orders.

CAAF then discusses what happens depending on what action TJAG decides to take, or not take.

There have been instances in the past where a commander has refused to follow the judicial order to release an accused. See e.g. Frage v. Moriarity.

The release does not mean that Hutchins cannot be re-confined if CAAF reverses NMCCA. In that event the issue will be what credit, if any, he receives for “confinement served” between the date of this release and his being reconfined. The answer may be none.

Hutchins released

June 14, 2010 | The Law Office of Philip D. Cave

Marine Corps Times reports that:

A Camp Pendleton Marine whose murder conviction was recently overturned was released Monday after serving four years in prison for a major Iraqi war crimes case, his lawyer said.

An emotional Sgt. Lawrence Hutchins III vowed to be the best Marine he could be while he waits for the U.S. Court of Appeals for the Armed Forces to review his case, defense lawyer Babu Kaza told The Associated Press after leaving the closed hearing at Camp Pendleton.

Failure to report

May 19, 2010 | The Law Office of Philip D. Cave

In United States v. Serianne, the CAAF affirmed an NMCCA decision that a Navy order to report civilian DWI/DUI convictions was unlawful and not enforceable at court-martial.

Navy Times reports:

The Navy’s self-reporting requirement for drunken driving arrests will fundamentally change as a result of a recent military court ruling, the Navy’s top lawyer said.

NMCCA on Quintanilla

May 19, 2010 | The Law Office of Philip D. Cave

NMCCA denied Quintanilla’s petition

in which he sought to have the court overturn the ruling of the military judge at his sentencing rehearing to the effect that Life Without Parole (LWOP) is not an authorized
sentence in his case. Alternatively, the petitioner requested that this court direct the military judge to grant the petitioner’s motion allowing him to waive his right to clemency and parole following sentence, so that he can more easily reach a pretrial agreement with the convening authority.

NMCCA decision

April 29, 2010 | The Law Office of Philip D. Cave

United States v. Holmes.

On direct appeal the NMCCA set aside the original findings of guilty to negligent homicide and the sentence.

A rehearing on sentence was authorized for the remaining guilty finding of false official statement.

NMCCA opinion

April 15, 2010 | The Law Office of Philip D. Cave

NMCCA has decided United States v. Oglesby.

The issue was prosecution sentencing evidence of other acts toward the victim which had not been charged. Appellant alleged that the military judge failed to conduct a proper 1001 and Mil. R. Evid. 403 balancing test. NMCCA disagreed.

NMCCA found that the military judge properly evaluated the evidence as to its admissibility, including a 403 balancing. The court further found that the military judge correctly gave a limiting instruction to the members on how they could use the additional evidence.