Wednesday, February 28, 2007

New published CGCCA UA/providence inquiry opinion

The Coast Guard Court's decision web page is down, but WESTLAW includes a published CGCCA case released yesterday. United States v. Jones, __ M.J. ___, No. 1222, 2007 WL 587264 (C.G. Ct. Crim. App. Feb. 27, 2007).

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.


John O'Connor said...

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.

No Man said...

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.