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Seaman Jones was found guilty of an impressive number of offenses totaling 12 specifications. One of those 12 specs was a 10-hour UA. During the providence inquiry, Jones indicated that he spent those 10 hours in a local jail. But the providence inquiry failed to explain what happened with whatever charges the civilians were holding him on. The Coast Guard Court explained:
Although the military judge implied that incarceration in a civilian jail never excuses an absence, the Manual for Courts-Martial recognizes that a member may be held by civilian authorities and prevented from returning to his or her unit but never found to have committed the offense for which detained. In such a case, the detention was not the result of the member's misconduct, and the member is not guilty of unauthorized absence. Manual for Courts-Martial, Pt. IV, ¶ 10.c.(5)(MCM), United States (2005 ed.).
Because the military judge never inquired into this potential defense, the Coast Guard Court set aside the finding of guilty to the 10-hour UA, then applied Sales and affirmed the sentence as adjudged and partially suspended.
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2 comments:
Hard to argue with any of that.
Oh, except the fact that resources were expended for appellate review of a spec to which the kid pleaded guilty and where he was going to end up with the same sentence, win or lose.
That would definitely be deserving of the astro-turf mat in Navy Appellate Defense. I always wondered why the CCAs spent so much time on relatively trivial points of law like that. I remember a published case that resulted in no sentence relief, but CCA went on and on about how it wasn't willful damage to non-military property to throw yourself in front of a moving vehicle in an attempt to injure/kill yourself. That kinda seemed like a no brainer that nobody is thinking, "Hey, I'm gonna pummel this car" when they jump in front of a moving vehicle. US v. White, NMCCA 200101242 Decided 29 April 2005. I guess that is the passion of a few CCA judges, seeing the trees through the forest.
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