The military judge decided that a 12-year-old girl (TO) was unavailable where:
(a)the government subpoenaed TO and her mother, issued their travel orders and made arrangements to fly them to Parris Island; (b) TO's hospitalization prevented her from complying with the subpoena; (c) TO had two significant psychiatric illnesses -- bipolar II disorder and post-traumatic stress disorder; (d) TO was taking Seroquel, a brain protectant and antipsychotic drug, and Tegretol, a mood stabilizer; (e) it "would be detrimental to TO's mental and physical health now and in the foreseeable future to testify at this court-martial or any hearing regarding the charges that were before the court"; and (f) "[a]ny court appearance would re-traumatize [TO] and would worsen her mental and physical health to include her possible suicide".
Id., slip op. at 14.
On what must have been a remarkably frigid August day in hell, an NMCCA panel split 2-1 in holding that the military judge erred by ruling that TO was unavailable and set aside the findings and sentence. United States v. Cabrera-Frattini, No. NMCCA 200201665, 2006 CCA LEXIS 218 (N-M. Ct. Crim. App. Aug. 2, 2006).
The Judge Advocate General of the Navy certified the case to CAAF, which today reversed in a unanimous opinion written by Judge Ryan.
But for military justice dweebs -- a group with which I proudly associate myself -- Cabrera-Frattini will forever be known not for the legal principle it establishes, but rather for the incredible coincidence that surrounded its oral argument. As Guert explained:
The case, which involved several Marines having sex with three twelve and thirteen-year-old girls, was scheduled to be heard at Loyola [University School of Law]. The school sent out an email asking if any students wanted to do an amicus brief and argument. One student was particularly interested in the case, but not as much as his classmates. Perhaps by mistake, he forgot to mention his sex with minors conviction when he enrolled. After three semesters of law school, the student has withdrawn from law school and returned to the sweet bliss that is never ending appellate leave.
But the Kabul Klipper had the best line: "By the way, he got meaningful relief at CCA AND they picked his law school for project outreach? This guy obviously lives in some parallel statistical universe. One that subjects its inhabitants to extreme karmic whiplash." And the whip just lashed him again.
I'm tempted to announce a new CAAFlog contest -- provide the recipe for a drink called a "Cabrera-Frattini." But I'm afraid to even imagine what some of you would suggest!