Thursday, August 16, 2007

15 minutes of fame

On Wednesday, 17 October, sometime around 1100, CAAF will hear 15-minute arguments by the parties in one of the most significant cases on its docket. The issue in United States v. Wilson, No. 06-0870/AR, is whether the defense of mistake of fact as to age is available with respect to a charge of sodomy with a child under the age of 16 under Article 125. This issue is significant enough in itself. It also carries the potential for further exploration of Lawrence v. Texas, 539 U.S. 558 (2003), and United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004). And now it carries the potential to explore a fascinating jurisprudential issue as well.

In United States v. Gainous, __ M.J. ___, No. 06-0932/NA (C.A.A.F. Aug. 14, 2007), CAAF specified the following issue:

WHETHER THE DICTA IN UNITED STATES v. ZACHARY, 63 M.J. 438, 442 (C.A.A.F. 2006), INDICATING THAT THE DEFENSE OF MISTAKE OF FACT AS TO AGE IS A DEFENSE FOR THE CRIME OF SODOMY WITH A CHILD, OVERRULED UNITED STATES v. STRODE, 43 M.J. 29, 31 (C.A.A.F. 1995) (STATING THAT DEFENSE OF MISTAKE OF FACT AS TO AGE WAS NOT AVAILABLE TO STRICT LIABILITY OFFENSE OF SODOMY).

This particular language is significant, since the issue was specified by the court. And the issue appears rather weighted, since dicta usually doesn't overrule precedent. This wording suggests that the issue may launch a fascinating jurisprudential discussion of the nature of stare decisis. Note that the issue doesn't simply ask whether mistake of fact as to age is or isn't a defense to a sodomy charge. Rather, CAAF asks about the legal import of two of its previous cases addressing that issue.

CAAF directed that no briefs be filed in Gainous. But it gave the counsel in Wilson an important glimpse into what is on at least some of the CAAF judges' minds. Wilson should be a fascinating argument. Too bad it is scheduled to be so short.

5 comments:

Anonymous said...

And too bad the Army government appellate division already conceded the issue in its final brief. Where is appellate advocacy when we need it? Let's have a debate, not a rollover. As the Scooter used to say, "Holy Cow!"

No Man said...
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Fitzcarraldo said...

I thought that GAD had conceded on a similiar issue in US v. Edwin. As counsel for one of the companion cases, I've been following this issue since last fall. On October 3 of last year, CAAF granted review on this issue in Edwin:

WHETHER THE FINDINGS OF GUILTY TO INDECENT ACTS WITH A CHILD AND SODOMY WITH A CHILD MUST BE MODIFIED IN LIGHT OF UNITED STATES v. ZACHARY, 63 M.J. 438 (C.A.A.F. 2006) AND APPELLANT'S SENTENCE REASSESSED OR A NEW SENTENCE HEARING ORDERED.

On 20 December 2006, the Court issued this summary disposition:

No. 06-0745/AR. U.S. v. Anton C. EDWIN. CCA 20050607. On further review of the above-entitled case, it is noted that in its final brief, Appellee concedes that “the findings should be modified to reflect the lesser-included offenses of indecent acts with another and sodomy.” Final Brief on Behalf of Appellee at 5. In light of this concession and upon consideration of the record and the briefs, it is ordered that the decision of the United States Army Court of Criminal Appeals is reversed as to the language “a person who had not attained the age of 16 years” in Specification 1 of Charge I, “a child under the age of 16 years” in the Specification of Charge II, and “a female under 16 years of age” in Specification 2 of Charge III and as to the sentence, but is affirmed in all other respects.

The findings of guilty as to the aforementioned language are set aside and those portions of the specifications are dismissed. The record of trial is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals. That court may either reassess the sentence based on the affirmed findings or order a rehearing. Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2000), shall apply. The Hearing Notice of November 6, 2006, setting this case for oral argument is hereby vacated


After this outcome, I was mystified to see Wilson develop like it did.

No Man said...

Is it just me who is uninformed or did anonymous give us a drive by scoop? GAD conceded what? What did they say? That's like putting a donut on a string and dangling it just beyond Homer's reach. Must have more inside information . . . Mmm, the guy next to me on the train has donuts, Dunkin' Donuts! What was I talking about?

No Man said...
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